T 
 
 WI4-94r 
 tiiD 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 
 m
 
 cr 
 
 L/sr 
 
 fi ■-■^•- 
 
 , v^idMi
 
 •e x 
 
 mmm 
 
 '■av
 
 I&.
 
 SUMMARY 
 
 OF 
 
 THE LAW OF RAILWAYS: 
 
 WITH 
 
 AN APPENDIX, 
 
 INCLUDING THE 
 
 THREE GENERAL CONSOLIDATION ACTS 
 
 WITH ANALYSIS AND NOTES ; 
 
 REPORTS OF PROCEEDINGS BEFORE COMMITTEES ON 
 RAILWAY BILLS, 
 
 ^arliamentatg practice, 
 
 FORMS, &c. 
 
 BY 
 
 FREDERICK WALFORD, ESa. 
 
 OF THE INNER TEMPLE, BARRISTER AT LAW. 
 
 SeconD ISUitfon. 
 
 BOSTON : 
 CHARLES C. LITTLE AND JAMES BROWN. 
 
 LONDON : 
 
 THOMAS BLENKARN. 
 
 18 50. 
 
 ^
 
 PREFACE 
 
 SECOND EDITION. 
 
 The general order and arrangement of the Second 
 Edition of this Work is the same as that of the 
 first ; so far, that is to say, as regards the body of 
 the Work, the principal difference between the 
 two Editions consists in the necessary enlargement 
 which some portions of the text have undergone, 
 in order to embrace more fully the many novel ques- 
 tions which the rapid growth of Railway Enterprise 
 during the preceding year has produced. The chap- 
 ter, in particular, which treats of the rights and 
 liabilities of the parties concerned in Companies for 
 the formation of Railways, such as allottees of 
 shares, provisional directors, and the like, has been 
 enlarged to the full extent deemed consistent with 
 the scope and limits of the work. Abstracts, more- 
 over, of many of the most important cases have been 
 introduced into the notes, by way of illustrating the 
 positions laid down in the text. 
 
 The main additions, however, are those which 
 have been made to the Appendix. Reports have 
 been given of the Proceedings of two of the most 
 
 important Committees of last Session, that on 
 a2 
 
 ^JA QO.'^-Q 
 
 748f:
 
 IV PREFACE. 
 
 Group (X) of Railways, (The London and York, 
 &c.), and that on Group (A), (The North Kent, 
 South-Eastern, &c.) These reports, it may be 
 proper to remark, are not intended to give a de- 
 tailed history of each day's proceedings, but to ex- 
 plain the general nature of the proceedings before 
 Committees, and the principal points of parlia- 
 mentary law or practice, which are likely to arise 
 in the course of them. In addition to this, there 
 has been introduced into the Appendix a Summary 
 of Parliamentary Practice, including the new Reso- 
 lutions of the two Houses, the Suggestions recently 
 issued by the Chairmen of Committees for their 
 guidance, a view of the question what constitutes a 
 locus standi to be heard before a Railway Committee 
 against a bill, and the grounds of opposition that 
 may be taken by opponents. Forms of Railway 
 Deeds have also been added, and a brief account of 
 the present functions of the Board of Trade in re- 
 gard of Railway Bills before Parliament. The Ap- 
 pendix concludes with some unreported cases re- 
 lative to the liabilities of Provisional Directors, and 
 the important case of Reg. v. The Great Western 
 Railway Company, touching the rating of Railways, 
 just reported. 
 
 4, King's Bench Walk, Temple, 
 April, 1846.
 
 TABLE OF CONTENTS. 
 
 PAGE 
 
 INTRODUCTION 1 
 
 LIB. I. 
 
 Of Railways at Common Law. 
 
 Cap. I. 
 
 Of Railways made hy Owner of the Soil on his 
 own Ground 
 
 Cap. II. 
 Of Railways made in pursuance of Way Leaves, SfC. 
 
 1. Nature and Extent of Power conferred by Way 
 
 Leave, &c. . . . . . . . . . . 3 
 
 2. Rights and Liabilities of Owner of Railway con- 
 
 structed under Way Leave . . . • . . 7 
 
 3. Remedies relating to such Railways . . . . 8 
 
 LIB. II. 
 Of Railways by Statute. 
 
 Cap. I. 
 
 Of the Provisional Formation of a Railway Company 
 previous to an Act of Parliament, and of the 
 Powers, Duties, Rights, and Liabilities growing 
 thereout. 
 
 1. Of the Provisional Formation of a Company for the 
 
 making of a Railway .. .. .. ,. H
 
 vi Table of Contents. 
 
 PAGE 
 
 2. Of the Powers, Privileges, and Incapacities of a Com- 
 
 pany for the making of a Railway in its Provisional 
 Slate .. .. 26 
 
 3. Of the Duties of such Company, and herein more par- 
 
 ticularly of the Sleps pieliminary to, and of the ob- 
 taining the Act of Parliament .. .. .. 35 
 
 4. Of the Riolits and Liabilities growing out of the above 
 
 state of things ,, .. .. .. .. 41 
 
 Cap, II. 
 Of the Act of Parliament. 
 
 1. Of the Validity of the Act 61 
 
 2. Of the Construction of the Act .. .. .. 62 
 
 I. Of the general Principles of Construction . . id. 
 
 II. Of the Principlesapplicable to particular Clauses 63 
 III. Of the Principles applicable lo the Construction 
 
 of several Acts relating to the same Company 65 
 
 Cap. III. 
 Of the Company, as constituted under the Act. 
 Part I. Of the Legality of a Railway Company .. 67 
 
 Part II. Of the Constitution of a Railway Company . . 68 
 Sect. 1. Of the Constitution of the Company generally . . id. 
 Sect. 2. Of the Company viewed in its external Relations 70 
 
 (1) Of the Mode of Action prescribed by its Act 
 
 to the Company .. .. .. id, 
 
 1. Of the Organs through which the Com- 
 pany must act .. .. .. id. 
 
 2. Of the Forms to be observed by the 
 
 Company in acting .. .. 72 
 
 (2) Of the Powers, Capacities, and Incapacities 
 
 of a Railway Company .. .. 74 
 
 1. Of the general Nature and Extent of 
 
 Powers of Company .. .. id, 
 
 2. Of their Suspension, Cesser, or Deter- 
 
 mination .. .. .. .. 127 
 
 3. Of their Revival, &c 133 
 
 (3) Of the Rights of the Company incidental 
 
 to such Powers .. .. .. .. 136 
 
 1. Rights in general .. .. .. id, 
 
 2. Rights in regard of particular Contracts 
 
 For Purchase of Lands .. .. 138 
 
 For Performance of Works .. 139 
 
 a3
 
 Table of Contents. vii 
 
 PAGE 
 
 (4) Of the Duties and Obligations of a Railway 
 
 Company .. .. .. .. .. 148 
 
 (5) Of its Buithens 154 
 
 (6) Of its public Acts and Liabilities .. .. 160 
 
 1. Of Liabilities on Contracts .. .. id. 
 
 2. Of Liabilities in Tort 173 
 
 (7) Of Compensation 185 
 
 1. At what time Compensation to be made id. 
 
 2. In regard of what Interests .. .. 187 
 
 3. For what Injuries .. .. .. 191 
 
 4. Of the Proceedings to ascertain the 
 
 Amount of Compensation .. .. 198 
 
 Where Company the moving Party id. 
 
 Of the Notice to take lands . . id. 
 
 Of the Precept . . . . 200 
 
 Of the Inquisition .. .. 202 
 Where Owner of Land, &c. the 
 
 moving Party .• .. .. 208 
 
 5. Of moving for a new Trial, Certiorari, 
 
 &c 211 
 
 6. Of the Title id. 
 
 7. Of the Conveyance 212 
 
 8. Of the Purchase Money .. .. 214 
 
 9. Of the Costs 225 
 
 Sect. 3. Of the Company viewed in its internal Relations 234 
 
 (1) Of the Individual Shareholders .. .. id. 
 
 (2) Of the general Meetings of the Company . . 237 
 
 (3) Of the Directors 239 
 
 (4) Of the Officers, Servants, &c 246 
 
 (5) Of Bye Laws 247 
 
 (6) Of Registration 249 
 
 (7 ^ Of the Books, Records, &c. of the Company 251 
 
 Sect. 4. Of the Capital of the Company 252 
 
 (1) Of the Capital of the Company generally. . id. 
 
 (2) Of Shares 254 
 
 1. Of their Nature id. 
 
 2. Of their Incidents .. .. .. id. 
 
 Of their Capability of Transfer .. 255 
 
 Of their Liability to Forfeiture .. 274 
 
 (3) Of Calls 275 
 
 1. Of the Power of making Calls generally id. 
 
 2. Of the Corresponding Duty .. .. 276 
 
 3. Conditions precedent . . . . . . 277 
 
 4. Liability to Calls 279 
 
 Generally . . . . . . . . id. 
 
 Determination or Devolution of Liability 282 
 
 By Transfer 283 
 
 By Forfeiture 290 
 
 5. Requisites of Calls 291
 
 viii Table of Contents. 
 
 PAGE 
 
 Cap. IV. 
 Of the Construction of the Railway .. .. 296 
 
 Cap. V. 
 Of the User of the Railway. 
 
 1. Of the User generally 298 
 
 2. Of the Right to Tolls 300 
 
 1. Of the general Nature and Extent of the Right to 
 
 Tolls id. 
 
 2. How it may be defeated . . . . . . . . 302 
 
 3. Of a Railway Company viewed as Carriers .. 303 
 
 1. Of Goods id. 
 
 2. Of Passengers 322 
 
 Cap. VI. 
 
 Of certain general Statutory Provisions for the Re- 
 gulation, 8fc. of Railway Companies, whereby their 
 Powers, Duties, Obligations, HfC. are more or less 
 extensively modified. 
 
 1. Of Powers of Supervision reserved to Board of Trade 330 
 
 2. Of Provisions for the Extension and Enlargement of 
 
 the Powers of Railway Companies . . . . 339 
 
 3. Of Regulations touching Matters of Police .. 342 
 
 4. Of Provisions qualifying and extending the Duties, 
 
 &c. of Railway Companies .. .. ,. 345 
 
 5. Of certain Conditions annexed to future Grants of 
 
 Parliamentary Powers for making of Railways . . 347 
 
 Cap. VII. 
 Of Remedies. 
 
 Part I. Of Remedies for or against Railway Companies. . 349 
 Sect. 1. Of Remedies for Railway Company against 
 
 Shareholders . . . . . . . , . . id. 
 
 1. At Law id. 
 
 2. In Equity 362
 
 Table of Contents, 
 
 PAGE 
 
 Sect. 2. Of Remedies for Railway Company against 
 
 Strangers 363 
 
 1. At Law .. .. .. ,. .. id. 
 
 2. In Equity 366 
 
 3. Of Criminal Remedies 369 
 
 Sect. 3. Of Remedies for Individual Members of Rail- 
 way Company against Company .. .. 370 
 
 1. At Law . . . . .. .. .. id. 
 
 2. In Equity 371 
 
 Sect. 4. Of Remedies for Strangers against Company. . 377 
 
 1. At Law id. 
 
 2. In Equity 404 
 
 3. Of Criminal Remedies .. .. .. 421 
 
 Part II, Of liemedies between Individual Shareholders.. 423 
 
 1. At, Law . . .. .. ., .. id. 
 
 2. In Equity . . . . . . . . . . id. 
 
 APPENDIX. 
 
 Statutes. 
 
 Act to compel Clerks of ihe Peace for Counties and other 
 Persons to take the Custody of such Documents as shall 
 be directed to be deposited with them under tiie Stand- 
 ing Orders of either House of Parliament, 1 Vict. c. 83 
 
 Act to provide for the Conveyance of the Mails by Rail- 
 ways, 1 & 2 Vict. c. 98 
 
 Act to provide for the Custody of certain Monies paid in 
 pursuance of the Standing Oiders of either House of 
 Parliament by Subscribers to Works or Undertakings to 
 be effected under the Authority of Parliament, 1 & 2 
 Vict. c. 117 
 
 Act to amend an Act of the Fifth and Sixth Years of the 
 Reign of His late Majesty King William the Fourth re- 
 lating to Highways, 2 & 3 Vict. c. 45 
 
 Act for regulating Railways, 3 & 4 Vict. c. 97 . . 
 
 Act for the better Regulation of Railways, and for the 
 Conveyance of Troops, 5 &. 6 Vict. c. 55 
 
 Act to attach certain Conditions to the Construction of 
 future Railways authorized or to be authorized by any 
 Act of the present or succeeding Sessions of Parliament, 
 and for other Purposes in relation to Railways, 7 & 8 
 Vict. c. 85 . . J 
 
 a6
 
 X Table of Contents — /Appendix. 
 
 PAGE 
 
 Companies Clauses Consolidation Act, 8 Vict. c. 16 . . liii 
 Operation of the Act, sect. 1. 
 Interpretation, &c. 2 — 4. 
 Form in which portions of Act may be incorporated 
 
 with other Acts, 5. 
 Clauses providing for the distribution of the Capital 
 
 into Shares, 6 — 13. 
 Transfer of Shares, 14 — 20. 
 Payment of Subscriptions and enforcement of Calls, 
 
 21-28. 
 Forfeiture of Shares for nonpayment of Calls, 29 — 35. 
 Execution against Shareholders to the extent of their 
 
 Shares not paid up, 36, 37. 
 Power to borrow Money, and Rights of Mortgagees, 
 
 &c. 38—55. 
 Conversion of the borrowed Money into Capital, 
 
 56—60. 
 Consolidation of the Shares into Stock, 61 — 64. 
 Application of Capital. 65. 
 General Meetings and Right of voting, 66—80. 
 Appointment and Rotation of Directors, 81 — 89. 
 Powers of the Directors, 90 — 91. 
 Proceedings of the Directors, 92 — 100. 
 Appointment and Duties of Auditors, 101 — 108. 
 Accountability of Officers, 109 — il4. 
 Keeping of Accounts and Right of Inspection by the 
 
 Shareholders, 115—119, 
 Making of Dividends, 120—123. 
 Making of Bye-laws, 124—127. 
 Proceedings for settling Questions by Arbitration, 
 
 128—134. 
 Giving of Notices, 1.35—139. 
 Proof of Debts in Bankruptcy, 140. 
 Tender of Amends, 141. 
 
 Recovery of Damages and Penalties, 142 — 158. 
 Appeal to the Quarter Sessions, 159, 160. 
 Access to Special Act, 161, 162. 
 Act not to extend to Scotland, 163. 
 Provision for recovering Calls against Shareholders 
 
 residing in Scotland, 164. 
 Alteration of Act, 165. 
 
 Lands Clauses Consolidation Act, 8 Vict. c. 18.. .. c 
 
 Operation of Act, sect. 1. 
 
 Interpretations, &c. 2 — 4. 
 
 Form in which portions of Act may be incorporated 
 with other Acts, 5. 
 
 Clauses regulating the Purchase of Lands by Agree- 
 ment, and enabling Parties having limited Interests 
 to sell and convey, 6 — 11.
 
 Tahle of Contents — Appendix. xi 
 
 PAGE 
 
 Clauses regulating the Purchase of Lands for addi- 
 tional Accommodation, 12 — 15. 
 
 Clauses providing for settling Cases of disputed Com- 
 pensation either by Two Justices or by Arbitration 
 or by a Jury, 16 — 23. 
 
 ]\Iethod of proceeding before Justices, 24. 
 
 Method of proceeding, &c., in case of Arbitration, 
 25-37. 
 
 Method of proceeding, &c., before a Jury, and Costs 
 oflnquiry, 38— 57. 
 
 Method of ascertaining Compensation to be made to 
 absent Parlies, 58 — 67. 
 
 Method of proceeding by Paity claiming Compensa- 
 tion from Company, 68. 
 
 Deposit and Application of the Compensation coming 
 to Parties having limited Interests, or prevented 
 from treating, or not making Title, 69 — 79. 
 
 Costs in cases of Money deposited, 80. 
 
 Form and Costs of Conveyances, 81 — 83. 
 
 Clauses regulating the Entry on Lands, 84 — 90. 
 
 Proceedings in case of Refusal to deliver Possession, 91. 
 
 Party not to be required to sell Part of House, 92. 
 
 Clauses providing for small Parcels of intersected 
 Land, 93, 94. 
 
 Clauses relating to Copyholds, 95 — 98. 
 
 Clauses relating to common Lands, 99 — 107. 
 
 Clauses relating to Lands in Mortgage, 108 — 114. 
 
 Clauses relating to Lands subject to Rent-charges, 
 115—118. 
 
 Clauses relating to Lands subject to Leases, 1 19 — 122. 
 
 Limit of Time for compulsory Purchase, 123. 
 
 Clauses providing for Cases where Interests in Lands 
 have been omitted to be purchased, 124 — 126. 
 
 Clauses providing for the Sale of superfluous Land, 
 127—132. 
 
 Land-tax and Poor's Rate to be made good, 133. 
 
 Service of Notices on Company, 134. 
 
 Tender of Amends, 135. 
 
 Recovery of Penalties, &c., 136 — 149. 
 
 Access to special Act, 150, 151. 
 
 Act not to extend to Scotland, 152. 
 
 Alteration of Act, 153. 
 
 Railways Clauses Consolidation Act, 8 Vict. c. 20 .. clvi 
 Operation of the Act, sect. 1. 
 Interpretation, &c., 2 — 4. 
 
 Form in which Portions of the Act may be incorpo- 
 rated with other Acts, 5.
 
 xii Table of Contents — Appendix. 
 
 PAGE 
 
 Clauses relating to the Construction of the Railway, 
 
 6—24. 
 Drainage of Lands, 25 — 29. 
 Powers of the Company with regard to the temporary 
 
 Use of Lands during the Construction of the Rail- 
 way, 30—44. 
 Power to take Lands for additional Stations, &c., 45 
 Crossing of Roads and Construction of Bridges, 46 
 
 —62. 
 Screens for the Protection of Turnpike Roads, &c. 
 
 to be made, if required, by the Board of Trade, 
 
 63,64. 
 Repair and Construction of Bridges, &c. in certain 
 
 cases, 65, 66. 
 Notices. &c. by and to Board of Trade, 67. 
 Works for the Protection and Accommodation of 
 
 Lands near the Railway, 68 — 75. 
 Branch Railways communicating with the Railway, 
 
 76. 
 Workingof Mines under or near the Railway, 77 — 85. 
 Clauses regulating the Carriage of Passengers and 
 
 Goods, the Amount and Collection of Tolls, Sec. 
 
 86—107. 
 Power to make Bye-laws for regulating the Use of 
 
 the Railway, 108—111. 
 Clauses regulating the Exercise of Power to lease 
 
 the Railway, 112, 113. 
 Clauses relating to the Carriages and Engines to be 
 
 brought on the Railway, 114 — 125. 
 Provisions relative to settlement of Disputes by Arbi- 
 tration, 126—137. 
 Service of Notices on C^ompany, 138. 
 Tender of Amends, 139. 
 
 Recovery of Damages and Penalties, &c., 140 — 160. 
 Money paid into Bank of Ireland exempt from Usher's 
 
 Poundage, 161. 
 Access to special Act, 162, 163. 
 Act not to extend to Scotland, 164. 
 Alteration of Act, 165. 
 
 Act to restrict the Powers of selling or leasing Railways 
 contained in certain Acts of Parliament relating to such 
 Railways, 8 & 9 Vitt. c. 96, ccxvia. 
 
 Act to facilitate the Admission in Evidence of certain offi- 
 cial and other Documents, 8 &: 9 Vict. c. 113, ccxvifc.
 
 Table of Contents — Appetidtx. xiii 
 
 Reports of Proceedings of Committees. 
 
 PAGE 
 
 Report of Proceedings of Committee of Session 1845 on 
 Group (X) of Railways .. .. .. .. ccxvii 
 
 Report of Proceedings of Committee of Session 1845 on 
 Group (A) of Railways .. .. .. .. ccxli 
 
 Parliamentary Practice. 
 
 .ccxlix 
 . cclxiv 
 .cclxxi 
 . ccci 
 . cccvi 
 
 I. Preliminary Proceedings .. 
 II. Provisions to be inserted in Railway Bills 
 
 III. Proceedings in the House of Commons 
 
 IV. Proceedings in the House of Lords 
 V. Evidence in support of Railway Project .. 
 
 YI. Of the Opposition to a Railway Bill, and the Evi- 
 dence adducible in Support thereof . . . . cccvii 
 
 VII. Proceedings relating to Bills re-introduced into Par- 
 liament during the present Session .. cccxxxii 
 VIII. Of the Costs .. .. .. .. cccxxxv 
 
 IX. Resolutions, &c. of the present Session relative to 
 
 Railway Bills .. .. .. .. cccxxxviii 
 
 X. Suggestions by Chairmen of Committees for Con- 
 sideration of Committees, Session 1846 . . cccl 
 
 Forms. 
 
 Parliamentary Contract .. .. .. .. ..cccliii 
 
 Subscribers' Agreement . . . . . . . . . . ccclvi 
 
 Notice to Owners and Occupiers of intended Application 
 
 to Parliament .. .. .. .. ccclxiv 
 
 Functions OF Board OF Trade .. .. .. ccclxv 
 
 MS. Cases, &c. 
 
 Rasirick v. Lambert . . . . . . . . ccclxviii 
 
 Vignoles v. Lefroy . . . . . . . . . . . . ib. 
 
 Stephen snn \.Rudge .. .. .. .. ccclxix 
 
 Beetham V. Cook .. .. .. .. .. .. ib. 
 
 Simon V. Fectnr . . . . . . . . . . . . ib, 
 
 Elkiiigtoii \. Fergusson and Avother .. .. ..ccclxx 
 
 Reg. \. Great Western Railway Co. .. .. .. ib. 
 
 INDEX ccclxxiii
 
 LIST OF CASES. 
 
 PAGE 
 
 Adder's Cliarity, Exparte Trustees of, &c, ' .. .. 226 
 
 Agar V. The Regent's Canal Company .. 128, 405 
 
 Aldred and others v. North Midland Railway Company 98, 164 
 Aldridge v. Great Western Railway Company .. 182 
 
 Angell, Exparte .. .. .. .. .. .. 228 
 
 Arkwright, Exparte .. .. .. .. .. 271 
 
 Arniitage v. Grand Junction Railway Company . . . . 386 
 
 Arnold «. Mayor of Poole .. .. .. .. 137 
 
 Arnsby t;. Woodward .. .. .. .. ..43 
 
 Athorpe, Exparte .. .. .. .. .. 230 
 
 Atkinson D. Heaton .. ., .. .. .. .. 264 
 
 Alt. -Gen. v. Birraingham and Derby Railway Company 321 
 Att.-Gen. D. Eastern Counties Railway Company .. 88,101, 
 
 107, 411 
 Att.-Gen. v. Eastern Counties Railway Convpany and 
 
 Northern and Eastern Railway Company 65, 89, 133, 410 
 Att.-Gen. v. London and Southampton Railway Cou)- 
 
 pany .. .. 98, 100, 108 
 
 Att.-Gen. v. Manchester and Leeds Railway Company 
 
 107, 407, 408, 409 
 
 Atl.- Gen. «. Wilson 245,362 
 
 Audeline v. London and South Western Railway Company 305 
 Aylesbury Railway Company I). Mount .. 284,350,355 
 
 Aylesbury Railway Company D.Thompson .. 285, 360 
 
 Barnard I'. Wailis 4,10 
 
 Earned v. Hamilton .. .. .. .. .. 263 
 
 Barnesley Canal Company ». Twibell .. .. 121,406 
 
 Barrett 1). Stockton and Darlington Railw. Co. .. 64,301 
 
 Beckett v. Bradley .. .. 267 
 
 Beetham D. Cooke .. .. .. .. .. -.55 
 
 Bell V. Francis . . . . . . . . . . . . 57 
 
 Bell V. Hull and Selby Railway Company, 64, 101, 405, 407, 
 
 409, 410,411,412 
 Benson D. Hadfield .. .. .. .. .. 2H,373 
 
 Beverley D. Lincoln Gas Light and Coke Company .. 137 
 
 Bignold, Exparte " . . 270,271 
 
 Birmingham, Bristol and Thames Junction Railway Com- 
 pany «. Locke 282,290,355,358
 
 XV i List of Cases. 
 
 PAGE 
 
 Birmingham, Bristol and Thames Junction Railway Com- 
 pany i;. White 252,362 
 
 Bishop u. North .. .. .. .. .. 79 
 
 Bishop (.f Durham, Exparte 229,230 
 
 Bishop of Ely, Exparte .. .. .. .. 229 
 
 Blain v. Agar . . . . . . . . . . , . 22 
 
 Blakeraorei'. Glamorganshire Canal Company 62, 74, 128, 129, 
 
 130, 131, 149, 382, 407, 408 
 
 Bligh u. Brent .. .. ,. .. .. .. 254 
 
 Bourne v. Freetli . . . . . . . . . . . , 2 3 
 
 Boxmoor, Exparte, Trustees of Waste Lands in re Birming- 
 ham Railway Coinpanv .. .. .. •• 232 
 
 Boyd V. Croydon Railway Company .. .. .. 378 
 
 Boys u. Pink .. .. .. .. .. .. 312 
 
 Bradley « Holdsworth 254, 2i7 
 
 Bridge r. Grand Junction Railway Company . . .. 386 
 
 Broughton v. Manchester Water Works Company .. 82 
 
 Brown y. Bamford .. .. .. .. •• 272 
 
 Bruce t). Willis 212,21) 
 
 Bull V. Morrell 246 
 
 Calder and Hebble Navigation Company v. Pilling . . 247 
 
 Garden V, General Cemetery Company .. •• 371 
 
 Carpue v. London and Brighton Railway Company. .325, 326, 
 
 379, 3B0 
 Cary v. Mathews .. .. .. .. .. 175 
 
 Calor V. Croydon Canal Company . . 188, 217, 2Si-^ 
 
 Chadwick «. Clarke .. .. .. .. .. 43,44 
 
 Charitable Corporation I'. Sutton .. .. .. 245,246 
 
 Cheltenham and Great Western Union Railway Company v. 
 
 Daniel 282,357 
 
 Cheltenham and Great Western Union Railway Company v. 
 
 Fry . . . . . . . . . . . . . . 35 I 
 
 Cheltenham Railway Company I). Price .. .. 360 
 
 Child V. Hudson's Bay Company .. .. .. .. 247 
 
 Church W.Imperial Gas Light and Cole Company . . 137 
 
 Clarence Railway Company v. Great North of England, 
 
 Clarence and Hartlepool Junction Railway Company.. 84, 
 
 85, 89, 111, 130. 369,410 
 
 Clarke v. Imperial Gas Light and Coke Company 71, 73, Q>, 
 
 169, 243,25-2; 
 Coats t). Clarence Railway Company .. .. ..90 
 
 Colley r. Smith .. .. .. .. .. 44 
 
 CoUinson v. Newcastle and Darlington Railway Company, 99, 
 
 377 
 
 Colt V. Wollaston 22 
 
 Cook D. .Aylesbury Railway Company .. .. 179 
 
 Cooke, Exparte, in re Liverpool and Manchester Railway 
 
 Company . . . . . . . . . . . . S30
 
 List of Cases. xvii 
 
 PAGE 
 
 Corporation of Trinity House, Exparte .. .. .. 232 
 
 Corrigali v. London and Blackwall Railway Company, 201, 202, 
 
 204, 208, 210, 219, 220. 227 
 
 Cory V. Norwich and Yarrnouth Railway Company 410,415, 416 
 
 Croinford Railway Company v. Lacey ..61, 67, 277, 279, 280, 
 
 282, 360 
 Cumming u. Prescott 242,268 
 
 Daly t;. Thompson 37,46,53,249,250 
 
 Dand t), Kingscote . . . . . . . . . . . . 4 
 
 Davis V. London and Blackwall Railway Company 181, 385 
 Decks V. Stanhope .. .. .. .. .. .. 424 
 
 Deere D. Guest .. .. .. .. .. .. 10 
 
 De Grave D. Mayor, &c. of Monmouth .. .. .. 162 
 
 Dewers v. Pike . . . . . . . . . . . . 246 
 
 Dickinson t), Valpy .. .. .. .. ..57 
 
 Dickman t). Blackwall Railway Company .. .. 181 
 
 Dobson, Exparte, in re Boult 268,270 
 
 Doe rf. Bryan V. Bancks .. .. .. .. ..43 
 
 Doe J. Fisher «. Roe .. .. .. .. .. 348 
 
 Doe d. Hutchinson v. Manchester, Bury and Rossendaie 
 
 Railway Company .. .. .. .. .. 216 
 
 Doe d. Myatt v. The St. Helen's and Runcorn Gap Rail- 
 way Company .. .. .. .. .. 126,244 
 
 Doe d. Payne v. The Bristol and Exeter Railway Com- 
 pany 78,129,134,206,217 
 
 Doe <i. Wawn D. Horn .. .. .. ., ..177 
 
 Doo V. London and Croydon Railway Company .. 163, 199 
 Draper u. Shurmer .. .. .. .. .. 303 
 
 Dudley Canal Company r. Grazebrook .. .. 120 
 
 Doubleday i;. Muskett .. .. .. .. ..56 
 
 Dun Navi;jation Company v. North Midland Railway 
 
 Company 135,405,406,407 
 
 Duncuft D, Albrecht 257,264 
 
 Duiidalk Western Railway Company v. Tapster .. 350, 356 
 Dunston i;. The Imperial Gas Light Company .. .. 242 
 
 Durham and Sunderland Railway Company v. Walker 4, 5, 8 
 Durham and Sunderland Railway Company v. Wawn 177, 367 
 Durham, (Bishop of), Ex parte .. .. .. 229,230 
 
 Eastern Counties Railway Company v. Cooke .. .. 356 
 
 Eastern Counties Railway Company v. Cooper .. 356 
 
 Eastern Counties Railway Company «. Fairclough .. 356 
 
 Eastern Counties Railway Company v. Tufnell .. 213, 233 
 Edger D. Knapp .. ,. .. .. .. ..44 
 
 Edinburgh and Dalkeith Railway Company v. Wauchope 
 
 63, 302 
 Edinburgh and Leiih Railway Company v. Dawson .. 350
 
 xviii List of Cases. 
 
 PAGE 
 
 Edinburgh, Leith and Newhaven Railway Company v. 
 
 Hebblewiiite 290, 352, 354, 355 
 
 Edwards v. Grand Junction Railway Company .. .. 163 
 
 Elkington v. Fergusson . . . . . . . . . . 55 
 
 Ellison u. I3ignold 239 
 
 Elwell n. Grand Junction Railway Company .. 328,387 
 
 Ely, (Bishop of), Exparie 229 
 
 Eton College, (Provost of ), &c. Exparte .. .. 23'2 
 
 Eton College, (Provost of), &c. v. Great Western Railway 
 
 Company .. .. ,. .. .. .. 117 
 
 Evans V. Dublin and Drogheda Railway Company . . 384 
 
 Farrow v. Vansittart . . . . . . . . . . 4, 9 
 
 Fisher t). Thames Junction Railway Company . . .. 386 
 
 Fishmongers' Company y. Robertson .. .. .. 137 
 
 Foss V. Harbottle . . . . 35, 64, 162, 237, 239, 243, 424 
 
 Fowler i;. Churchill 272 
 
 Fox V. Clifton 22, 23 
 
 Fox V. Frith 246 
 
 Fyler i;. Fyler 250,251,274,290 
 
 Gardner, Exparte, in re The Eastern Counties Railway 
 
 Company .. .. .. .. .. .. 229 
 
 Gibbons ii. Waterloo Bridge Company .. .. 419 
 
 Gildart t). Gladstone .. .. .. .. .. 64,301 
 
 Gillon V. Boddington . . . . . . . . • • 382 
 
 Glascoti w. The Copper Miners Company .. .. 376 
 
 Goddard u. Hodges .. .. .. .. .. 43 
 
 Golden D. Manning .. ,. .. .. .. 308 
 
 Gordon v. Chelteniiam and Great Western Railway Com- 
 pany 118,407,409,410 
 
 Grainge, Exparte .. .. .. .. .. .. 223 
 
 Grand Junction Railway Company v. White .. 122, 363 
 
 Great North of England Railway Company i;. Biddulph ..281, 
 
 294, 295, 351 
 GreatNorthof England, &c.. Railway Company «. Clarence 
 
 Railway Company .. .. 89,111,367,369,408,410 
 
 Great Western Radway Company Amendment Act, in re 225 
 Green I). Barrett .. .. .. .. .. ..22 
 
 Green i). Murray .. .. .. .. .. 262 
 
 Greenhaigh v. Manchester and Birmingham Railway Com- 
 pany 165,166,408,413 
 
 Hall V. Mayor, kc, of Swansea . . . . . . . . 137 
 
 Hammon I'. South Eastern Railway Company .. . 182 
 
 Hancock v. Hodgson . . . . . . . . . . 246 
 
 Hannuic i>. Goldner .. .. .. .. .. 256,260 
 
 Hare 0. Waring 258,260,261 
 
 Hargreaves v. Lancaster and Preston Junction Railway 
 
 Company .. .. .. .. 63,164,165,166
 
 List of Cases. xix 
 
 PAGE 
 
 Hargreaves v. Parsons . . . . . . . . . . 5257 
 
 Harrison, Exparte ,. .. .. .. .. .. 271 
 
 Harrison «. Heatheni .. .. .. .. .. 46,57 
 
 Hawthorn v. Newcastle-upon-Tyne and North Shields 
 
 Railway Company .. .. 145,146,148,177,387 
 
 Hemiiiingway jj. Fernandez .. .. .. .. 2,3 
 
 Her Majesty's Attorney-Ueneral v. The London and South- 
 ampton Railway Company .. .. .. ..98 
 
 Hewitt w. Price 256 
 
 Hibhiewhite u. M'Morine .. .. 256, 259, 265, 267, 281 
 
 Hichens t). Congreve .. .. .. .. .. 35 
 
 Hill V. Manchester and Salford Waterworks Company 
 
 71,74, 169, 252,378 
 Hinton t). Dibbiu .. .. .. .. .. .. 314 
 
 Hirst, Exparte 229 
 
 Holmes w. Higgins .. .. .. .. .. ..43 
 
 Hope V. Newcastle and Darlington Railway Company 179 
 
 Hornby j;. Houlditch 283 
 
 Home, Exparte 249,274 
 
 Howden (Lord) n. Simpson .. .. .. 58,59,60 
 
 Huddersfield Canal Company v. Buckley . . . . 283 
 
 Hun)ble v. Langston . . 259, 260, 261, 263, 266, 286, 288 
 
 Humble y. Mitchell 257,263 
 
 Hyde «. Great Western Railway Company .. 172,215 
 
 Hyde V. Trent and Mersey Navigation Company .. 308 
 
 Illingworth v. Manchester and Leeds Railway Company 
 
 95. 102,406, 407, 412,417 
 Imperial Gas Light Conipanv u. Clarke .. 245,252,349 
 
 Innocent D. Nortii Midland Railway Company 
 
 85, 3 86, 187, 194, 407 
 Jssauchaud, Exparte 217,219,223 
 
 Jackson «. Cocker .. .. .. .. 46,47,286 
 
 Jones, Exparte .. .. .. .. .. .. 219 
 
 Jones V. Great Western Railway Company 169, 214, 408 
 
 Jones V. Rose .. .. .. .. .. .. 372,375 
 
 Josephs V. Pebrer .. .. .. .. .. 46 
 
 Kemp V. London and Brighton Railway Company 
 
 103, 104, 207, 405, 409, 410 
 Kempson t). Saunders .. .. .. .. .. 48,49 
 
 Kennet and Avon Canal Company v. Great Western Railway 
 
 Company .. .. .. .. .. ,. 381 
 
 Keppell i;. Bailey '2,80 
 
 Kerridge j;. Hessey .. .. .. .. 54,55 
 
 Kidwelly Canal Company v. Raby .. .. .. 42, 237 
 
 King's Lyini, Mayor, &c. of, D. Peraberton .. .. 128
 
 XX List of Cases. 
 
 PAGE 
 
 Lake ». Duke of Argyle .. .. .. .. 57 
 
 Lancaster Canal Navigation, Company of Proprietors of, r. 
 
 Parnaby 152 
 
 Lane I'. Newdigate .. .. .. .. .. .. 408 
 
 Lawrence t). Knowles .. .. .. .. .. 259 
 
 Leei). Milner 75,77,129,130,197 
 
 Leeman i;. Lloj'd .. .. .. .. .. 46,48 
 
 Lichfield, Mayor of, &c. l!. Simpson .. .. .. 100 
 
 Limerick and VVaterford Railway Company v. Fraser . . 350 
 Lini^ford V. Barber . . . . . . . . . . 283 
 
 Lister u. Lobley ., .. .. .. .. .. 187 
 
 Lloyd I). Wigney 381,383 
 
 London and Birmingham Railway Company v. Grand 
 
 Junction Canal Company •• .. 88,93,367,409 
 
 London and Birmingham Railway Company v. Winter 137, 138 
 London Bridge Act, in re .. .. .. .. 230 
 
 London and Brighton Railway Company v, Blake .. 109, 110, 
 
 367, 407 
 London and Brighton Railway Company v. Cooper.. 106, 367 
 London and Brighton Railway Company d. Fairclough. .251, '255, 
 
 265,266,279, 281,290,295,351,353, 354,359,361, 362 
 Loudon and Brighton Railway Company v. Wilson ..239, 279, 
 
 353, 354 
 London and Greenwich Railway Company, in re .. 204, 226 
 London and Greenwich Railway Company v. Goodchild .. 126, 
 
 139 
 London Grand Junction Railway Company v. Freeman . . 46, 
 
 282, 294, 358, 359 
 London Grand Junction Railway Company v. Graham 282,358 
 London Grand Junction Railway Company u. Gunstoue 282,358 
 Long V. Yonge . . . . . . . . . . . . 424 
 
 Lord How den D. Simpson .. .. .. .. 58,59,60 
 
 Lord Petre v. Eastern Counties RaiUvay Company. .58, 59, 117 
 
 Lovell i). Hicks 22 
 
 Lucas V. Birmingham and Gloucester Railway Company.. 315 
 Ludford D. Barber .. .. .. .. .. 283 
 
 Lund i;. Blanshard .. .. .. .. 362,375,376 
 
 M'Intosh v. Midland Counties Railway Company .. 140 
 
 Madon, Exparte, in re Great Western Railway Company 231 
 Manby u. Long .. .. .. .. .. ..175 
 
 Mangles v. Grand Collier Dock Company . .40, 279, 288, 292. 
 
 293. 373, 374 
 Mannings. Eastern Counties Railway Company. .122,193, 208, 
 
 345 
 Manser i'. Northern and Eastern Counties Railway Com- 
 pany 90,105,405 
 
 Marc V. Malaclii . . . . . . . . . . . . 423
 
 List of Cases. xxi 
 
 PAGE 
 
 Marsh, Exparte . . . . . . 3^ 
 
 Marsliall, Exparte, in re Great Western Railway Com- 
 pany .. .. .. .. .. .. 231 
 
 Masternian, Exparte .. .. .. .. ..271 
 
 JMiiyhew V. Nelson .. .. .. .. .. 3i3 
 
 Major, 5(e., of Lichfield t), Simpson .. .. .. lOO 
 
 Mayor of Southam|itun t). Graves .. .. .. 252 
 
 MidlHnd Counties Railway Company V. Oswin .. 207, 213 
 
 Midland Couniies Railway Company v. Wescomb 213, 233 
 Mitchell V. Newell, in re Manchester and Leeds Railway 
 
 Act 230 
 
 Molyneux, Exparte, in re Manchester and Liverpool Rail- 
 way Company .. .. .. .. .. 230,231 
 
 Moneypenny v. Hartland . . . . . . . . . . oi 
 
 Monkland and Kirkintilloch Railway Company d. Dixon 79, 124; 
 Monmouth Canal Company I). Harford ., .. ,. Q 
 
 Mouchett D. Great Western Railway Company .. 407 
 
 Muschamp v. Lancaster and Preston Junction Railway 
 
 Company ,. .. .. .. .. .. 308 
 
 Newton, Exparte .. .. .. ,. .. 224,233 
 
 Nockells v. Crosby .. .. .. .. ..23,42 
 
 Norman v. London and Brighton Railway Company .. 313 
 North Union Railway Company v Bolton and Preston 
 
 Railway Company .. 124,299,368,369,406,416 
 
 Northam Bridge and Koads, Company of Proprietors of, v. 
 
 London and Southampton Railway Company 106, J 09, 408 
 Norihvvicke, Exparte .. .. .. .. 224,231 
 
 Norwich and Lowestoft Navigation, Company of Proprie- 
 tors of the, n. Theobald ., .. ' ,. 277,278 
 
 Oakley, Lord, v. Kensington Canal Company .. .. 381 
 
 Onslow, Exparte .. .. .. .. .. .. 229 
 
 Ord, Exparte .. .. .. .. .. .. 270 
 
 Owen D. Burnett .. .. .. .. .. .. 3i3 
 
 Palmer v. Grand Junction Railway Company. .306, 309, 327, 
 
 379 
 Parker i;. Great Western Railway Company ..62,319,320,377 
 Parkes, Exparte .. .. .. .. .. ,. 391 
 
 Parkcs t). Great Western Railway Company .. ., I7i 
 
 Pearson v. London and Croydon Railway Company .. 371 
 Peiniey v. Great Western Railway Company . .83, 212, 220, 221 
 Perkins i>. J)eptford Pier Company .. .. .. 244 
 
 Petre, Lord, w. Eastern Counties Railway Company 38, 59, 1 17 
 Perkins t;. Pritchard .. .. .. .. .. 244 
 
 Phelps v. Lyie .. .. ,. .. ,. .. 242 
 
 Phene v. Gillon .. .. .. .. .. .. ^68
 
 xxii List of Cases. 
 
 PAGE 
 
 Pickford V. Grand Junction Railway Corapan3'. .304, 303, 308, 
 
 318, 519, 321. 385 
 Pitchford v. Davis . . , . . . . . . . . . 23 
 
 Playfair v. Ilie Birminghaiu, Bristol and Tliames Junction 
 
 Riiilway Company .. . .. 40,291,373,374 
 
 PontL't I). Basingstoke Canal Company .. ., .. 252 
 
 I'ooley, Expaile .. .. .. .. .. .. 271 
 
 Preston u. (jiiy on .. .. .. .. .. ..40 
 
 Preston v. Tlie Grand Collier Dock Company . . 40, 275, 288, 
 
 289, 372, 373, 376, 377 
 Priestley «. Foulds .. .. .. .. .. ..62 
 
 Priestley v. The Manchester and Leeds Railway Conipanv..88, 
 
 94 
 Provost, &c., of Eton College, Exparte .. .. .. 232 
 
 Ranger v. Great Western RaiKvay Companv. . 139, 140, 142, 
 
 143, 144, 171, 417, 419, 420 
 Rastrick u. Lambert .. .. ,. .. ..54 
 
 Rede «. Farr .. .. .. .. .. .. 43 
 
 Reg. z). Binjjhara 208,399 
 
 Reg. D. Birmingham and Gloucester Railway Company .. 100, 
 
 101, 105, 108, 179, 393, 397, 421, 4s!2 
 
 Reg. t;. Bristol Dock Company .. .. .. 151,388 
 
 Reg. V. Bristol and Exeter Railway Company .. 116, 195, 393, 
 
 394, 404 
 Reg. i;. Bristol and Gloucester Railway Company .. 196 
 Re::.!;. Brownlow .. .. •• .. .. .. 366 
 
 Reg. i;. Committeemen for South Holland Drainage .. 400 
 
 Reg. u. Deptlbrd Pier Company .. .. 221,393 
 
 Reg. v. Directors of Blackwall Railway 39-i 
 
 Reg. v. Eastern Counties Railw.iy Company.. 64, 97, 149, 150, 
 194, 195, 196, 211, 239, 365, 371, 389, 390. 391, 593, 
 
 396, 397, 599 
 Reg. C.Elmore .. .. .. .. .. .. 370 
 
 Reg. D.Giand Junction Railway Company 155, 156, 157, 159, 
 
 566 
 Reg. V. Great North of England Railway Company .. 151 
 
 Rfg. I). Great Western Railway Company .. .. 156,364 
 
 Reg. V. Ilolroyd .. .. .. .. .. 344 
 
 Reg. u. Hull and Selby Railway Company .. .. .. 590 
 
 Reg. t). Lancaster and Preston Junction Railway Company 403 
 Reg. «;. London and Bir(uinghani Railway Company .. lOj, 108, 
 
 364 
 Reg. D. London and Blackwall Railway Company 388,395,399 
 Reg. U.London and Greenwich Railway Company .. 114, 115 
 Reg. 1). London and Southampton Railway Company . .181, 189, 
 
 421 
 Reg. V. London and South- Western Railway Company .. 127, 
 
 155," J 58, 299
 
 List of Cases. xxiii 
 
 PACK 
 
 Reg. V. Mancliesler and Leeds Railway Company 91, 97, 196, 
 
 397,399, 400, 401, 40ii 
 Reg. t). Monmoutlisliire Canal Company .. .. 159 
 
 Reg. V. Newcastle and Darlington Railway Company .. 36.5 
 Reg. i;. North Midland Railway Company ., 195, 395!, 393, 399 
 Reg. n. Norlh Union Railway Company .. 195, 210,39.3,39.5 
 Reg. u. NorwicI) and Brandon Railway Company .. 3B8, 393 
 Reg. on the prosecution of the Mayor, &c., of Maidenliead, 
 
 V. Great Western Railway Company .. .. 73, 392 
 
 Reg, 1). Perkins .. .. .. ., .. .. 36.5 
 
 Reg. t!. Polworth . . . . . . . . . . . . '566 
 
 Reg. V.Scott 104.105,181,422 
 
 Reg. «;. Sharpe 88,182 
 
 Reg. V. Sheffield, Ashton-under-Line, and Manchester 
 
 Railway Company . . .. .. 196, 5i02, 403, 404 
 
 Reg. 1). Sheriff of Middlesex 211,399 
 
 Reg. j;. Sheriff of Warwickshire .. .. .. 227 
 
 Reg. V. Stockdale and Darlinyton Railway Company .. 364 
 Reg. i>. Thames Haven Dock and Railway Company 277 
 
 Reg. «. Thoroughgood .. .. .. .. .. 370 
 
 Reg. i;. Trustees of Swansea Harbour .. .. 206,401 
 
 Reg. 1'. Victoria Park Compan\' .. .. .. 154,277 
 
 Reg. i;. West .. .. ." 73,364 
 
 Reg. V. York and North Midland Railwav Company. .365,389, 
 
 399 
 
 Rex V. Bell 7 
 
 Rex V. Brecknock and Abergavenny Canal Company . . 393 
 Rex t;. Commissioners for improving Market Street, Man- 
 chester .. .. .. .. .. ., 199 
 
 Rex «;. Evett .. .. .. .. .. .. 364 
 
 Rex r. Fell 402 
 
 Rex y. Gardner .. .. .. .. .. .. 227 
 
 Rex V. Hungerford Market Company.. ,. 192, 199 
 
 Rex v. Jollitfe .. .. .. .. .. ., 7 
 
 Rex V. Justices of the City of York .. .. .. 228 
 
 Rex V. Justices of West Riding of Yorkshire. . 197, 402, 404 
 Rex t). Leeds and Selby Railway Company .. 120, 198 
 
 Rex t). London Dock ('ompany .. .. .. ,. 196 
 
 Rex n. Liverpool and Manchester Railway Com[)anv .. 191 
 Rex V. Masters and Wardens of Merchant Taylors' Com- 
 pany 252 
 
 Rex i;. Mayor, &c. of Evesham .. .. .. .. 383 
 
 Rex D. Medley .. .. ., .. .. ., 176 
 
 Rex v. Morris 80,81,87,184 
 
 Rex «. Mott .. .. .. ., .. .. 53 
 
 Rex V. Nottingham Old Waterworks.. 192, 194, 204, 207, 2t>0, 
 
 221 
 
 Rex V. Pease 63, 184 
 
 Rex w. Regent's Canal Company .. .. ,, ,. 421
 
 XX iv List of Cases. 
 
 PAGE 
 
 Rex V. Severn and Wye Railway Company .. 152, 388, 389 
 Rex «. Staiiiforlli and KeacJby Canal Company .. .. 209 
 
 Rex V. Trustees of North Leach and Witney Roads .. 252 
 Rex V. Trustees of Norwich and Walton Road . . "203, 401 
 Rex 11. Wilts and Berks Canal Company .. .. 25i, 393 
 
 Rex t). Worcester Canal Company .. ,. .. 249 
 
 Rhodes, In re, &c. .. .. .. .. .. 22.5 
 
 Richardson i;. Hast'ngs .. .. .. ., S75, ■i'>ii 
 
 Richardson r. Larpent .. .. .. .. 373,376 
 
 River Dun Navigation Company v. North Midland Rail- 
 way Company .. .. .. 135,405,406,407 
 
 Roberts v. Read 382 
 
 Robertson v. Great Western Railway Company. .172, 214, 418 
 
 Robins, Exparte 304,389,390 
 
 Robinson «. Peace .. .. .. .. .. .. 274 
 
 Rogers j;. Holloway .. .. .. .. .. 272 
 
 Rouch V. Great Western Railway Company 144, 145, 146, 176 
 Rowe K. Shils(;n .. .. .. .. .. .. 302 
 
 Rutley t). South Eastern Railway Company .. .. 315 
 
 Saint Katherine's Dock Company, in re .. .. .. 232 
 
 Salmon r. Randall 129,130,131 
 
 Scales t). Pickering .. .. .. .. .. 64 
 
 Scott V. Eastern Counties Railway Company .. .. 169 
 
 Seddon D. Conni-ll .. .. .. .. .. 245 
 
 Semple v. London and Birmingham Railway Company . .175, 
 
 178, 412,414, 415, 418 
 Sharp V. Grey . . . . . . . . . . . . 323 
 
 Sharpe y. Great Western Railway Company .. .. J70 
 
 Shaw, Exparte .. .. .. .. .. .. 224 
 
 Siiaw II. Holland .. .. .. .. .. .. 50 
 
 Sheffield, Ashton-under-Lyne and Manchester Railway 
 
 Company v. Woodcock. .234, 240,255, 281, 282. 285, 
 
 292, 294,361 
 SheflBeld Canal Company v. Sheffield and Rotheriiam 
 
 Railway Company .. •. .. 165,168,231 
 
 Simon I;. Fector .. .. .. .. .. ..55 
 
 Sims u. Commercial Railway Company .. .. 199 
 
 iSirhowy Tramroad Company v. Jones and Homfray v. 
 
 Jones .. 65,78 
 
 Small r. Attwood 22 
 
 Smith V. Birmingham Gas Company .. .. 72, 175 
 
 Smith t). Golriswortliy .. .. .. .. 65,66,248 
 
 Smith «;. London and Birmingham Railway Company .. 316 
 
 Smith t). Shaw 380 
 
 Smith u. Stafford 274 
 
 Society of Practical Knowledge t). Abbott .. 35,362 
 
 South Eastern Railway Company u. Hebblewhite .. 353, 3.t4 
 South Eastern Railway Company v. Sprott . . . . 357
 
 List of Cases. xxv 
 
 PAGE 
 
 Southampton Dock Company v. Richards. .292, 351, 358, 359, 
 
 S6<i 
 
 Spencer, Exparte .. .■ 270,27:2 
 
 Spencer D. London and Birmingham Railway Company . .104, 
 
 408, 410, 418 
 Stainbank u. Fernley •• .. •• .. 22,4123 
 
 Stanley 1^. Chester and Birkenhead Railway Company .. 163, 
 
 166, 419 
 Steigenberger v. Carr .. .. .. .. .. 57 
 
 Stephens t;. De Medina 259,262 
 
 Stephenson n. Rudge .. .. ., .. .. 55 
 
 Stewart «. Cauty 258,262,263 
 
 Sione V. Commercial Railway Company .. 1 12, 113, 199, 200, 
 
 203 
 Storer t). Great Western Railway Company .. 123,172,417 
 Storr i;. Crowley .. .. .. .. .. .. 308 
 
 Stourbridge Canal Company u. Wheeley .. .. 62 
 
 Stratford and Moreton Railway Company v. Stratton . .65, 66, 
 
 277, 293 
 Syms v. Chaplin .. .. .. .. .. 308,312 
 
 Taylor, Exparte .. .. .. .. .. 229 
 
 Taylor J). Ashton .. .. .. .. .. .. 23 
 
 'I'a^lor y. Clemson .. .. .. 76,77,201,205,218 
 
 'I'aylor D. South Eastern Railway Company .. .. 183 
 
 Thames Haven Dock and Railway Company v. Htli..72, 175, 
 
 292, 352, 353, 356 
 Thames Haven Dock and Railway Company i). Rose.. 72, 241, 
 
 353 
 Thames Tunnel Corapany v. Sheldon . . . . . . 28() 
 
 Thicknesse v. Lancaster Canal Company .. l'J9, 132, I8.i, 188, 
 
 197,392 
 
 Thorpe w. Hughes 279,372,373 
 
 Tilson V. Warwick Gas Light Company •• .. .. 371 
 
 Todd V. London and South Western Railway Company .. 160 
 Toralinson v. Manchester and Birmingham Railway Com- 
 
 pany 167,172,173 
 
 Tottie t). Allen .. .. .. .. ., .. 54 
 
 Tower V. Eastern Counties Railway Corapany . . 340, 409 
 
 TraflFord, Exparte 231 
 
 Trustees of John Addey's Charity, Exparte .. .. 226 
 
 Turner, Exparte .. .. .. .. .. .. 227 
 
 Turner v. Sheffield and Rotlierham Railway Company.. 63, 180, 
 
 192, 296, 377 
 Tyrrell t>. Woolley ., 246 
 
 Vallance, Exparte .. .. .. .. .. v70 
 
 Vauxhall Bridge Company D. Earl Spencer .. .. 58 
 
 Vignoles v. Lefroy . . . . . . . . . . 54, 56 
 
 b
 
 xxvi List of Cases. 
 
 PAGE 
 
 Wainwright r. Ramsdeii .. .. .. .. .. 190 
 
 Waithnian, Expaite .. .. .. .. .. 271 
 
 Walker v. Londun and Blackwall Railway Company . .114, 115, 
 
 209, 210 
 Walker v. London and South-Western Railway Company 
 
 305, 315 
 
 Wailworth i;. Holt 375 
 
 Warburton and others v. London and Blackwall Railway 
 
 Company,. .. 181,412,414 
 
 Ward I'. Society of Aitornies .. .. .. 248,372 
 
 Ware u. Grand Junction Waterworks .. .. 153,372 
 
 Watkins, Exparte 270 
 
 Watkins «. Huuiley .. .. .. .. .. 49 
 
 Webb V. Manchester and Leeds Railway Company . .64, 86, 
 
 87, 405 
 West London Railway Company v. Bernard .. 294, 362 
 
 Wheldal y. Northern and Eastern Railway Company .. 184 
 
 Whitehead J'. Barron .. .. * 23 
 
 Whitnall v. Manchester and Leeds Railway Company .. 322 
 Wilkinson u. Lloyd .. .. .. .. .. 46,48 
 
 Wilson t). Anderson .. .. .. .. .. 8 
 
 Wilson D. Wilson 242 
 
 Wolseley j;. Cox .. .. .. .. .. .. 266 
 
 Wood t). The Duke of Argyle .. .. .. ..23,57 
 
 Wyrley and Essington Navigation Company v. Bradley 120 
 
 Yarborough v. Bank of England 72, 174, 175 
 
 Young D, Smith .. .. .. .. .. ..52
 
 ( xxvii ) 
 
 ERRATA ET ADDENDA. 
 
 Page 37, last line but one and last line, for " no railway bill 
 shall be read a third time unless," read " in case of application 
 to parliament for powers to construct a railway." 
 
 Page 38, first line, before " have been," insert "must." 
 
 Appendix, page ccxxxii, n. (g), for " ccxxx," read " ccxxvi." 
 
 Appendix, p, cclxxviii, line 10, et seq. — The rule here laid 
 down is not, it is believed, generally observed in practice, except 
 as regards the copies of the printed and amended breviates, which 
 are left by the agents at the Board of Trade. 
 
 Votes, <Sfc. of Commons, \6th February, 1846. 
 
 That it be an instruction to the select committee on petitions 
 for private bills, and to all committees upon private bills, not to 
 hear parties on any petition hereafter referred to them, which 
 shall not be prepared and signed in strict comformity with the 
 rules and orders of this house. {Vide Standing Orders, Ilia.) 
 
 Votes, 6fc. of Commons, \lth February, 1846. 
 
 Harbours, Docks, &c. — Ordered, That all bills for the for- 
 mation or improvement of harbours and wet docks, navigable 
 rivers, and canals, and works of every kind, on lands withia 
 high water mark, be referred to the Board of Admiralty for their 
 report thereon, before the committee on the bill shall report to 
 the house. 
 
 Minutes, S;c. of Lords, March 19, 1846. 
 
 The following resolution, viz., " That no petition praying to 
 be heard upon the merits against any second class railway bill 
 shall be received by the House of Lords, unless the same be 
 presented on or before the day on which such bill shall be 
 read a second time," was considered ("according to order) and 
 agreed to, and ordered to be added to the roll of Standing Orders.
 
 xxviii Errata et Addenda. 
 
 Minutes, &ic. of Lords, March 23, 1846. 
 
 The following Standing Order, viz , " That a copy of every 
 railway bill as proposed to be amended in the committee shall 
 be deposited at the Board of Trade two days before the same 
 shall be reported to the house, and also a copy of every bill 
 as amended in the committee shall be deposited at the Board of 
 Trade two days before the same shall be read a third time in the 
 house," was considered (according to order) and amended. 
 
 The following, it is believed, is the form of the oider as 
 amended : — 
 
 " That a copy of every railway bill as amended in the com- 
 mittee shall be deposited at the Board of Trade three days before 
 the same is read a third time in the house." 
 
 Votes, S;c. of Commons, 2d April, 1846. 
 
 Ratt.way Bii.i.s~ Ordered, That every committee on a rail- 
 way bill shall fix the toll=. and shall determine the maximum 
 rates of charge for the conveyance of passengers (with a due 
 amount of luggage) and of goods on such railway, and such 
 rates of charge shall include the tolls, and the costs of locomo- 
 tive power and every other expense connected with the con- 
 veyance of passengers (with a due amount of luggage) and 
 of goods upon such railway; but if the committee shall not 
 deem it expedient to determine such maximum rates of charge, 
 a special report, explanatory of the grounds of their omitting 
 so to do, shall be made to the house, which special report 
 shall accompany the report of the bill. 
 
 Ordered, that the following clause be inserted in all railway 
 bills passing through this house : 
 
 " And be it further enacted, That nothing herein contained shall 
 be deemed or construed to exempt the railway by this or the said 
 recited acts authorized to be made from the provisions of any 
 general act relating to such bills, or of any general act relating 
 to railways, which may hereafter pass during this or any future 
 session of parliament, or from any future revision and alteration, 
 under the authority of parliament, of the maximum rates of 
 fares and charges authorized by this act." 
 
 Votes, (5fc. of Commons, April 3, 1846. 
 
 74. Standing Orders.— Standing Order No. 135 lead and 
 repea led. 
 
 Resolved, That seven clear days' notice, and in the case of a 
 re-committed bill three clear days' notice, in writing, be given by 
 the clerk to the Committee of Selection to the clerks in the Pri- 
 vate Bill Office, of the day and hour appointed for the meeting of 
 the committee on every private bill ; and that all the proceedings 
 of any committee of which such notice shall not have been given 
 shall be void.
 
 SUMMARY 
 
 LAW RELATING TO RAILWAYS. 
 
 INTRODUCTION. 
 Of the Different Kinds of Railways. 
 
 1. It is proposed in the present treatise to consider 
 the legal characteristics of railways. As these mainly 
 depend on the nature of the power or authority, 
 under or by virtue of which a railway is constructed, 
 it may be proper to look at our subject in this point 
 of view. So regarded, railways are distinguishable 
 into two classes; 1st, railways at common law; 
 and 2dly, railways constructed under the authority 
 of acts of parliament. 
 
 The former species of railway again subdivides 
 itself into two, viz. 1st, a simple rail or tram way, 
 made by the owner of property on his own land for 
 its more convenient use and occupation, or by several 
 owners of co-terminous property, in pursuance of 
 some mutual arrangement for that purpose between 
 themselves ; and 2d, a tram or railway constructed 
 under a way leave, or grant, or right of way. 
 
 B
 
 LIB. I. 
 
 OF RAILWAYS AT COMMON LAW. 
 
 CAP. I. 
 
 Of Railways made by Owner of Soil on his own 
 Ground. 
 
 2. A railway constructed by a private individual 
 on his own ground, in its legal character, differs in 
 nothing from an ordinary occupation road ; the in- 
 cidents therefore of such railway must, it is con- 
 ceived, be the same, save that in the use of it 
 greater caution may be requisite under some cir- 
 cumstances to guard against injury to the life or 
 property of others. 
 
 3. A covenant by an owner of adjoining property 
 to make exclusive use of a railway so constructed, 
 paying a certain toll, is not, it seems, a covenant 
 that runs with the land, or is binding on the assignee 
 of such property, even though the covenant ex- 
 pressly purport to bind " assigns " ; (a) but as be- 
 tween the lessor and lessee of land intended to form 
 a railway it is otherwise. (6) A lessee of a colliery 
 agreed with a neighbouring landowner for the lease 
 of land to form a railway, covenanting at the same 
 time for himself, &c. and his assigns, to carry over 
 the intended railway all coals gotten from such col- 
 liery, or from any other mines in the same township, 
 
 (a) See the case of Keppell v. Bailey, 2 My. 6c K. 517. 
 (fa) Hemmiiigway v, Fernandez, 21 Law Journ. Ch. 130; 
 S.C. 13 Sim. 228.
 
 Railways made in pursuance of Way Leave. ?> 
 
 paying so much per ton ; this was held to be a 
 covenant that ran with the land, and bound the 
 assignees of the interest in the agreement, (c) 
 
 4. Where a railway is constructed by several 
 owners of adjoining property in pursuance of some 
 arrangement to that effect, a distinction it seems 
 must be taken according as the agreement is under 
 seal or not. In the former case it would seem to 
 amount to a grant by each party to the agreement, 
 to the others, of a right of way over the former's 
 soil ; and then the railway constructed under it 
 would fall under the second class of railways de- 
 scribed in the next chapter : in the latter case no 
 one of the contracting parties would, it is conceived, 
 acquire any legal interest in the soil of any of the 
 others, but the whole would rest in agreement only. 
 
 CAP. II. 
 
 Of Raihvays made in pursuance of Way Leaves, c^-c. 
 
 I. Nature and Extent of Power given by Way Leave. 
 II. Rights and Liabilities of Owner of Railway constructed 
 
 under Way Leave. 
 III. Remedies relating to such Railways. 
 
 5. I. Way leaves, or powers of granting rights 
 of way over lands sold or demised, as easements 
 reserved to grantors or lessors, are a species of 
 property well known in the north of England, and 
 often of great value and importance. The nature 
 and extent of any such power, and what it autho- 
 rizes the lessor, &c. or his assignee to do, (which is 
 
 (c) JJemminguay v. Fernandez, ubi supra. 
 B 2
 
 4 Railways at Common Law. 
 
 obviously the substantial question that we have 
 here to consider,) must of course depend on the 
 particular terms of the reservation in each case. 
 The reservation, for instance, may be couched in 
 such language, as to vest in the lessor, &c. an un- 
 limited power of granting way leaves over all or 
 any part of the lands demised, &c. without any re- 
 striction whatever as to the uses to which the way 
 should be applied ; or it may restrict the power to a 
 particular purpose only, and that of a more or less 
 limited character. To determine accordingly what 
 a way leave authorizes in any particular case, whe- 
 ther, for instance, it confers a power of constructing 
 a railway at all, and, if so, one of what kind, in 
 what direction, to what extent and for what pur- 
 poses, we must look at the terms of the reservation, 
 and consider what is the fair and reasonable import 
 of those terms, {d) 
 
 6. In a deed of the date of 1630 the reservation 
 was " of all mines of coal in A., together with suffi- 
 cient way leave and stay leave to and from the said 
 mines, &c. ;" all that it was held to authorize was 
 the making of a railway in such a direction, and of 
 such construction as was reasonably sufficient for 
 the purpose of getting the coals reserved, (e) 
 
 7. The plaintiff, it is to be observed, in the above 
 case was precluded by the form of his pleading from 
 contending that some species of railway was not 
 
 (rf) Dm^d V. Kingscote, 6 M. & W. 174 ; S. C. 2 Railway Cas. 
 27 ; Durham and Sunderland Railivay Company v. Walker, 2 
 Gale & D. 326 ; S. C. 2 A. & E. N. S. 940 ; 3 Railw. Cas. 36 ; 
 Farrow v. Vamittart, 1 Railw. Cas. 602 ; Barnard v. Wallis, 
 2 Railw. Cas. 162 ; S.C.I Cr. & Ph. 85 ; 5 Jur. 813. 
 
 (e) Dand v. Kivgscote, ubi supra.
 
 Railways made in pursuance of Way Leave. 5 
 
 proper and convenient under the terms of the reser- 
 vation. Had he heen in a position to raise the ques- 
 tion, its determination, it is conceived, (considering 
 the obvious purpose of a reservation such as that 
 in question,) must have rested on much the same 
 grounds as that actually before the court ; viz. 
 whether, under all the circumstances of the case, a 
 railway of some sort was not fairly requisite for the 
 working of the coal in question in a reasonably bene- 
 ficial manner. 
 
 8. So where the reservation was amongst other 
 things " of all the mines under certain demised lands, 
 together with power to dig, win, and carry away the 
 same, with free ingress, egress, and regress, way 
 leave, and passage to and from the same, or to or 
 from any other mines, lands, and grounds, on foot, 
 and on horseback, and with carts and all manner of 
 carriages, and also all necessary and convenient 
 passages, conveniences, privileges, and powers what- 
 soever for the purposes aforesaid, and particularly 
 of laying, making, and granting waggon ways in and 
 over such lands &c. ;" the only right reserved to the 
 lessors under the above clause was held to be that 
 of making and granting the right of making such 
 ways over the demised lands as were proper for the 
 purpose of getting the excepted mines &c., and 
 consequently that they could neither make them- 
 selves, nor authorize any one else to make, a rail- 
 way for the conveyance of goods and merchandize 
 generally. (/) 
 
 9. From this latter case it may be gathered, that 
 
 (f) Durham and SniiderUind Railway Compriny V. Walker, 
 ubi supra.
 
 () Railways at Common Lam. 
 
 to give an unlimited way leave, it must be reserved 
 or excepted as a distinct matter of reservation or 
 exception, and not simply mentioned in connection 
 with some previous matter of exception ; other- 
 wise the fair conclusion is, that it is meant to be 
 confined to the single object of getting the matters 
 excepted. 
 
 10. As the manifest object of such a reservation 
 is to enable the owner of the thing excepted to get 
 it beneficially to himself, and therefore what passes 
 under it must necessarily be a right to such a de- 
 scription of road, as may be reasonably sufficient 
 to enable the owner to do so from time to time ; it 
 would seem to follow that a railway, if it answers 
 this description, may be taken to fall within the 
 scope of such a reservation, although no such spe- 
 cies of way were in use at the time of the grant &c., 
 or were expressly mentioned in the terms of the re- 
 servation. 
 
 11. The right of making a railway over the soil 
 of another may be claimed not simply by way of an 
 express reservation, but likewise as an easement 
 appurtenant to land by virtue of twenty years' en- 
 joyment of the same, or as something necessary 
 for the convenient occupation of adjoining closes. 
 To justify the making of a railway on the latter 
 ground, a party must of course be prepared to esta- 
 blish that the railway is necessary for the proper 
 enjoyment and occupation of his property on each 
 side of that which he crosses, (g-) And he must take 
 care not to carry the use of it beyond that purpose. 
 
 (ff) Monmouth Canal Comjiany \: Harford, 1 C. M. iN; R. 
 614.
 
 Railways made in pursuance of Way Leave. 7 
 
 To support such a claim on the former ground, 
 twenty years' uninterrupted enjoyment of the ease- 
 ment as of right must be shown ; it may therefore 
 be defeated by proof on the other side of such en- 
 joyment being only permissive. (A) 
 
 12. II. It is proposed in the next place to speak 
 of the rights and liabilities of an owner of a raibvaij 
 over the land of another. He is of course liable 
 for any injury that may be occasioned by the im- 
 proper construction or use of such railway to the 
 adjoining property : on the other hand, for any dis- 
 turbance of the traffic on such railway, he would 
 seem entitled to the like remedies as the owner of 
 an ordinary easement. 
 
 13. A grantee of an easement of this kind may take 
 such exclusive occupation of the soil, as to subject 
 himself to the burthens incident to the character of 
 occupier. As where a party took a lease of way 
 leaves, with a liberty of erecting bridges, levelling 
 hills &c., and in pursuance of the powers thus 
 acquired made an inclosed waggon way, («) ex- 
 cluding all other persons, erected bridges and built 
 two houses on the land for his servants ; it was held 
 that he was liable to be rated to the poor for " the 
 ground called the waggon v\|ly " Where there is 
 not this exclusive occupation the party is not liable : 
 because what he has is a mere easement, that is not 
 the subject of rate, {k) 
 
 14. Where upon a grant of a way leave over land 
 under demise, in addition to a way leave rent, there 
 is likewise a certain sum per acre reserved under a 
 
 {h) See ante, p. f), n. (e). {k) Rex v. JoUiffe, 2 T. R. 90. 
 (i) Rex V. Bell, 7 T. R. 598.
 
 8 Railways at Common Law. 
 
 covenant to that effect, as tenant's damage, for the 
 land occupied by the railway, and such sum is made 
 payable by the covenant to the ovrner of the land, 
 or his lessees or tenants ; the question, to whom the 
 money ought to be paid, whether to the landlord or 
 tenant, seems to depend on this, whether the land 
 is or is not severed from the farm, (k) That, if not 
 expressly provided for by some agreement between 
 the parties, must be a question for the jury to de- 
 termine, (k) 
 
 15. III. It is proposed to speak of the respective 
 remedies of the owners of the soil, and the grantee 
 of the way leave. And herein first of the remedies 
 at law. If the grantee of the way leave go beyond 
 the authority given by the way leave, he thereby 
 subjects himself to an action at the suit of the grantor. 
 But where a railway constructed under a way leave 
 is such, as the grantee of the way leave is warranted 
 in making for the purpose, for which when made he 
 may lawfully use it, the reversioner of the land tra- 
 versed by the railway cannot have an action against 
 the grantee simply on the ground of his intention to 
 use it for other purposes, for whieh he has no right 
 to use it ; though, if the latter afterwards put in 
 execution this unwarranted use of the railway, he 
 may thereby subject himself to an action of tres- 
 pass at the suit of the tenant. (/) 
 
 16. Secondly, of the remedies in equity. Where 
 the construction of a way leave is doubtful, and the 
 grantee attempts under colour of it to do what it 
 
 (fc) Wilson V. Anderson, 1 Car. & K. 544. 
 (/) Durham and Sunderland Ruilwaii Company v. Walker, 
 ^ibi supra.
 
 Railways made in 'pursuance of Way Leave. 9 
 
 may prove ultimately not to warrant, and what is 
 calculated at any rate to work grievous injury to the 
 land, the landowner has a right to have his property 
 protected until the precise eftect of the reservation 
 can be ascertained by the decision of a court of law, 
 and may accordingly apply to a court of equity to 
 grant an injunction for tliis purpose. (?«) It is usually, 
 however, it is to be remarked, made a condition of 
 granting an injunction under such circumstances 
 that the plaintiff should proceed to a trial of the 
 question at law at the earliest possible opportu- 
 nity, (n) 
 
 17. To entitle himself to the interposition of a 
 court of equity by way of injunction, a party must 
 take care to make his application in due time ; as the 
 court may refuse to interfere where there has been 
 laches or acquiescence in the proceedings of the 
 undertakers- 
 Such an application must moreover be made while 
 the undertaking is still in progress ; since as soon 
 as it is complete the undertakers are beyond the 
 reach of an injunction, and this whatever be the 
 means by which they have succeeded in bringing 
 their work to completion. Thus it has been held 
 that there is no equity to restrain by injunction the 
 owners of a railroad, made over the plaintiff's land, 
 from using the railroad after it has been completed, 
 or from interrupting the plaintiff's workmen in re- 
 moving it and restoring the land to its original state, 
 although the possession of the land for the purpose 
 of constructing the railroad may have been ob- 
 
 (m) Farrow v. Vansiltart and others, 1 Railw. Cas. 602. 
 (n) Ibid. 
 
 B 5
 
 10 Railways at Common Lam. 
 
 tained from a tenant of the plaintiff by means of 
 circumvention and fraud, (o) 
 
 1 8. A party may it seems carry his acquiescence to 
 such a height as even to preclude himself altogether 
 from taking advantage of his legal rights in regard 
 of the reservation, whatever those rights may be ; 
 as, for instance, if, with a full knowledge of his 
 legal rights and of the plans and intentions of the 
 undertakers for their invasion, he lets them go on 
 and lay out money and complete their works with- 
 out making any opposition, or agrees to permit the 
 scheme to be carried out, or even to assist and pro- 
 mote it. (p) But where the equitable grounds are 
 not thus clear and decisive, as where the landowner 
 has not this knowledge either of his own position or 
 of the projects of the other side, there a court of 
 equity would not, it seems, interfere to enjoin the 
 former's legal rights, but would leave the parties to 
 contest their rights at law in the first instance, {q) 
 In general a party seeking the aid of a court of 
 equity on grounds of the above nature, in opposition 
 to an admitted legal right, must, in order to obtain 
 it, give judgment in the action, or if he wishes to 
 go on and defend the action, he must postpone his 
 application in equity until after the result of the trial 
 at law. (a) 
 
 (o) Deere v. Guest, 1 My. & C. 516. 
 
 (p) Barnard v. Wallis, 2 Railw. Cas. 162, judgment of the 
 Master of the Soils, S. C. I Cr & Ph. 85 
 (q) Ibid.
 
 ( n ) 
 
 LIB. II. 
 
 OF RAILWAYS BY STATUTE. 
 
 CAP. I. 
 
 OF THE PROVISIONAL FORMATION OF A COMPANY PRE- 
 VIOUS TO AN ACT OF PARLIAMENT, AND OF THE 
 POWERS, DUTIES, RIGHTS AND LIABILITIES GROWING 
 THEREOUT. 
 
 1. — Of the Provisional Formation of a Company for the making 
 
 of a Railway. 
 2. — Of the Powers, Privileges and Incapacities of a Company 
 
 for the making of a Railway in its Provisional State. 
 3. — Of the Duties of such Company, and herein more particularly 
 
 of the Steps preliminary to and of the obtaining the Act 
 
 of Parliament. 
 4. — Of the Rights and Liabilities growing out of the above State 
 
 of Things. 
 
 Sect. 1. — Of the Provisional Formation of a Company 
 for the making of a Railway. 
 
 19. Where parties propose to construct a railway, 
 and by consequence to apply to parliament for a 
 grant of the necessary powers, there are three things 
 mainly important for them to attend to : 1st. To 
 comply with the requisitions of the recent act for 
 the registration, &c, of joint stock companies, so far 
 as they are applicable to companies for the making 
 of railways; 2ndly. To procure the necessary sub-
 
 12 Railways by Statute. 
 
 scriptions, and to establish such arrangements among 
 the subscribers, as may provide for a due contri- 
 bution towards the expenses at all events, whether 
 the project succeed or not, and also for the conduct 
 and management of the undertaking till an act is 
 procured ; and Srdly. To comply with the regu- 
 lations which are adopted by parliament on appli- 
 cation for bills of this nature. 
 
 20. I. Of the registration of a company for the 
 making of a railway, and herein, 1st, of provisional 
 registration. 
 
 Before, however, adverting to the immediate 
 head of our inquiry, there is a preliminary question, 
 that it may be proper briefly to notice, viz. how far 
 companies for the formation of railways in foreign 
 states, or in the colonies, fall within the provisions 
 of the above act. The true test then of the appli- 
 cability of the act to such companies would seem 
 to be, to consider whether it is intended by the pro- 
 jectors that the legal relation of partnership between 
 the subscribers should be formed, and the govern- 
 ment and administration of the company's affairs, 
 as a company, be transacted here or abroad? In 
 the former case, the company must be deemed to be 
 substantially an English company, and consequently 
 to fall within the provisions of the act; in the latter 
 not. It follows, consequently, that even though a 
 company have an office and place of business in this 
 country, and a branch committee established here 
 for the purpose of allotting shares, receiving de- 
 posits &c., still it is not within the act, if it origi- 
 nates abroad, and the management of its concerns 
 is substantially carried on there, the branch com-
 
 Provisional Formation of a Company. 13 
 
 mittee here in such case being the mere agents 
 of, and acting in subordination to, the foreign di- 
 rectors, (a) 
 
 (a) The enactment, on which rests the determination of the 
 above question, is as follows : — 
 
 " And be it enacted, that this act shall apply to every joint 
 stock company, as hereinafter defined, edahlhhed in any part of 
 the United Kingdom of Great Britain and Ireland, except Scot- 
 land, or established in Scotland and having an office or place of 
 business in any other part of the United Kingdom, for any com- 
 mercial purpose, or for any purpose of profit, or for the purpose 
 of assurance or insurance (except banking companies, schools, 
 and scientific and literary institutions, and also friendly societies, 
 loan societies, and benefit building societies, respectively duly 
 certified and enrolled under the statutes in force respecting such 
 societies, other than such friendly societies as grant assurances 
 on lives to the extent hereinafter specified) ; and that the term 
 " joint stock company" shall comprehend — 
 
 Every partnership whereof the capital is divided or agreed to 
 be divided into shares, and so as to be transferable without 
 the express consent of all the copartners ; and also. 
 Every assurance company or association for the purpose of 
 assurance or insurance on lives, or against any contingency 
 involving the duration of human life, or against the risk of 
 loss or damage by fire, or by storm or other casualty, or 
 against the risk of loss or damage by fire, or by storm or 
 other casualty, or against the risk of loss or damage to 
 ships at sea or on voyage, or to their cargoes, or for grant- 
 ing or purchasing annuities on lives; and also every insti- 
 tution enrolled under any of the acts of parliament relating 
 to friendly societies, which institution shall make assur- 
 ances on lives or against any contingency involving the 
 duration of human life to an extent upon one life or for 
 any one person to an amount exceeding two hundred 
 pounds, whether such companies, societies, or institutions 
 shall be joint stock companies or mutual assurance societies, 
 or both ; and also.
 
 14 Railways by Statute. 
 
 21. To return then to the question originally pro- 
 posed for consideration, in order to procure them- 
 selves to be registered pursuant to the recent statute 
 (7 & 8 Vict. c. 110), for the registration of joint 
 stock companies, the promoters, before taking any 
 steps to make their scheme public, must make cer- 
 tain returns to the office for the registration of joint 
 
 Every partnership which at its formation, or by subsequent 
 admission (except any admission subsequent on devolution 
 or other act in law), shall consist of more than twenty- five 
 members : 
 And that, except where the provisions of this act are expressly 
 applied to partnerships existing before the said first day of No- 
 vember, it shall be held to apply only to partnerships the forma- 
 tion of which shall be commenced after that date : provided 
 nevertheless, that, except as hereinafter specially provided, this 
 act shall not extend to any company for executing any bridge, 
 road, cut, canal, reservoir, aqueduct, waterwork, navigation, 
 tunnel, archway, railway, pier, port, harbour, ferry or dock, 
 which cannot be carried into execution without obtaining the 
 authority of parliament : provided also, that, except as herein- 
 after is specially provided, this act shall not extend to any com- 
 pany incorporated or which may be hereafter incorporated by 
 statute or charter, nor to any company authorized or which may 
 be hereafter authorized by statute or letters patent to sue and 
 be sued in the name of some officer or person." 
 
 Looking at the provisions of the above section, the question 
 would seem to turn mainly on the meaning to be attributed to 
 the term " established." Now this term cannot, it should 
 seem, be construed to have reference exclusively either to the 
 first formation of the company, (that is, in other words, the for- 
 mation of the legal relation of partnership between the sub- 
 scribers), or to the conduct and management of its business, but 
 includes both notions. (See 9 Jurist, p. 225, and p. 239 ; 
 Lewis's Liabilities of Subscribers, &c., pp. 77, 78 ; Words- 
 worth's Joint Stock Companies, pp. 7, 8, 5th ed.)
 
 Provisional Formation of' a Company. 1 5 
 
 stock companies. (6) Those returns must embody 
 the following particulars : — 
 
 " 1. The proposed name of the intended com- 
 pany ; and also, 
 
 2. The business or purpose of the company; 
 
 and also, 
 
 3. The names of its promoters, together with 
 
 their respective occupations, places of bu- 
 siness (if any), and places of residence." 
 Also, either before or after the scheme is made 
 public, the following particulars must be returned 
 when and as they are from time to time decided on. 
 " 4. The name of the street, square, or other 
 place in which the provisional place of 
 business or place of meeting shall be si- 
 tuate, and the number (if any) or other 
 designation of the house or office ; and 
 also, 
 .5. The names (c) of the members of the com- 
 mittee or other body acting in the forma- 
 
 (h) 7 & 8 Vict. c. 110, s. 4. Forms for registration are ob- 
 tainable at tlie registry office. As to the fees payable upon and 
 in respect of registration, see act, s. 21. 
 
 {c) Coupling the provision as to this fifth particular with that 
 m the following section, it would seem that the only safe course 
 that can be adopted by the promoters, &c. to avoid the penalty 
 mentioned in the latter section, is, before deciding on the mem- 
 bers of the committee, to obtain from them the necessary consent 
 and agreement in writing, otherwise they run the risk of the par- 
 ties decided on refusing to act. 
 
 All persons whose names appear on the face of the prospectus 
 as provisional committee-men, must, it is conceived, be regis- 
 tered, although they are mere honorary members, and not in- 
 tended to take any active share in the management of the com-
 
 16 Railways by Statute, 
 
 tion of the company, their respective oc- 
 cupations, places of business (if any), and 
 places of residence, together with a written 
 consent on the part of every such member 
 or promoter to become such, and also a 
 written agreement (e) on the part of such 
 member or promoter, entered into with 
 some one or more persons as trustees for 
 the said company, to take one or more 
 shares in the proposed undertaking, which 
 must be signed by the member or pro- 
 moter whose agreement it purports to be 
 (but such agreements need not be on a 
 stamp) ; and also, 
 
 6. The names of the officers (/) of the com- 
 
 pany and their respective occupations, 
 places of business (if any), and places of 
 residence ; and also, 
 
 7. The names of the subscribers to the com- 
 
 pany, their respective occupations, places 
 of business (if any), and places of resi- 
 dence ; and also, before it shall be circu- 
 lated or issued to the public, 
 
 pany, which is to be intrusted exclusively to a particular few, 
 termed the committee of management ; as this latter committee 
 can only be regarded as a mere branch or sub-committee of the 
 former. 
 
 (e) This agreement may, it should seem, be made with any 
 person or persons that the promoters may choose to select for 
 the purpose. 
 
 (/) By officers of the company, it is conceived, must be 
 understood such persons as have the charge and superintendence 
 of any branch or department of the company's business, such, for 
 instance, as the solicitor, engineer or secretary.
 
 Provisional Formation of a Company. 17 
 
 8. A copy of every prospectus or circular, 
 
 handbill or advertisement, or other such 
 document at any time addressed to the 
 public, or to the subscribers or others, 
 relative to the formation or modification 
 of such company; (g) 
 
 9. And afterwards, from time to time, until the 
 
 complete registration of such company, a 
 return of a copy of every addition to or 
 change made in any of the above parti- 
 culars." 
 
 Upon the registration of at the least the three 
 first of the above mentioned particulars, the pro- 
 moters become entitled to a certificate of provisional 
 registration. (A) 
 
 The promoters are liable to a penalty, not ex- 
 ceeding 20/., in case of their failing to register any 
 of the above particulars within one month after they 
 have been ascertained (i) or determined, (k) 
 
 22. The promoters are relieved from all risk of 
 
 {g) Parliamentary notices and circulars, &c. touching the 
 mere conduct and management of the affairs of the company, 
 are not within this provision, but only such notices, &c., as re- 
 late to its constitution, such as the original prospectus or any 
 subsequent advertisement of a change in the governing body 
 the amount of capital, &c. 
 
 (JO 7 & 8 Vict. c. 110, s. 4. 
 
 (i) The words ''ascertained or determined," in this section, 
 must, it is conceived, be taken to mean the same thing as the 
 term " decided" in the preceding. The month, therefore, would 
 begin to run, as regards any one particular, from the time that 
 it is decided on by the promoters. 
 
 (k) 7 & 8 Vict. c. 110, s. 5.
 
 1 8 Railways by Statute. 
 
 incurring the penalty, by the appointment of a soli- 
 citor to make the required returns. (A-)- They must, 
 however, in this case, return a duplicate of the ap- 
 pointment in writing, signed by some one or more 
 of the promoters, together with a duplicate of the 
 acceptance of such appointment, signed by the per- 
 son so appointed. The solicitor thereupon becomes 
 the party to make the requisite returns, and is liable 
 to the penalty in case he fails to do so, or may even 
 be suspended from practice, or struck off the rolls, 
 if it appears that he fraudulently omitted to make a 
 return (/) of any such particulars. The above ap- 
 pointment continues in force until a duplicate of the 
 revocation or of the resignation of the appointment, 
 signed as aforesaid, be returned to the registry 
 office, or until the decease of the solicitor; (/) also, 
 upon the company's obtaining a certificate of com- 
 plete registration the authority of the solicitor 
 ceases, (m) 
 
 23. To entitle the company to a certificate of com- 
 plete registration, the deeds of partnership or sub- 
 scription contracts, required by the standing orders 
 of the two houses of parliament, must, in compliance 
 vfith, and at or within the time required by such or- 
 ders, be deposited at the proper offices of the two 
 houses ; and also a copy of such deeds or subscription 
 contracts, together with such certificate of the receipt 
 of such plans, sections and books of reference, as 
 
 (/c) The promoters cannot, under this section, appoint joint 
 solicitors, and it would seem questionable whether a firm can be 
 appointed. 
 
 (/) 7 & 8 Vict. c. 110,5.6. 
 
 (m) Ibid. s. 16.
 
 Provisional Formation of a Company. 19 
 
 may have been appointed by the Board of Trade, 
 must be returned to the registry office, (n) This cer- 
 tificate, it is to be remarked, ceases to be operative 
 upon the company's obtaining their act of incorpo- 
 ration, (o) or from the time of the same coming into 
 operation. 
 
 Although companies for the formation of railways^ 
 by complying with the requisites of the above sec- 
 tion, may entitle themselves to be completely regis- 
 tered, yet there is nothing, it is to be remarked, in 
 the act, which renders it obligatory upon them to do 
 so. It comes therefore to a simple question of ex- 
 pediency, whether they shall register completely 
 or not. Now a company on complete registration 
 gains a certain accession of power ; in particular, it 
 becomes entitled to have a common seal, to sue and 
 be sued by its registered name, and to receive instal- 
 ments beyond the 10 per cent, required to be depo- 
 sited by the standing orders of either house of par- 
 liament, where a further sum is requisite for obtaining 
 the company's act of incorporation, (^j) Of these 
 powers, the latter more especially, it is conceived, (^r) 
 may, under some circumstances, be of so great im- 
 portance to a company to acquire, as to render it 
 worth their while to incur the increased expense of 
 registering completely for the purpose, 
 
 24, II. In order to the due attainment of the 
 
 (n) 7 & 8 Vict. c. 110, s. 9. 
 
 (o) Ibid. s. 25. 
 
 (p) The question as to the transferability of shares, which 
 may perhaps be taken to aflbrd another ground in favour of 
 complete registration, will be considered hereafter, see post, s. 4. 
 
 {q) See Collier on Railways, App, pp. 8, 9.
 
 20 Railways by Statute. 
 
 second of the above objects, a series of acts is 
 necessary : 1st, a provisional committee must be 
 selected ; 2ndly, the scheme must be made public ; 
 3dly, the shares are to be allotted ; and, 4thly, the 
 company must be organized under the requisite pro- 
 visional instruments. 
 
 25. First, of the choice of a provisional committee. 
 Spiritual persons, holding any cathedral preferment, 
 benefice, curacy, or lectureship, or who are licensed 
 or allowed to perform the duties of any ecclesiastical 
 office, cannot, it would seem, lawfully act as mem- 
 bers of a provisional committee ; it might therefore 
 be prudent in the projectors of a railway scheme 
 to avoid choosing such persons on the committee, 
 though their being so chosen or acting in such capa- 
 city would not have the effect of rendering the pro- 
 jected company illegal, or invalidating the parlia- 
 mentary contract, or subscribers' agreement, exe- 
 cuted by the subscribers to the company, or in short 
 any other contract made on its behalf, (r) The pro- 
 
 (r) See stat. 1 & 2 Vict. c. 106, ss. 29 & 31, and stat. 4 & 5 
 Vict. c. 14, s. 1. By the express terms of the latter statute it is 
 rendered unlawful for any such spiritual person to act as a director 
 or manager of any association or partnership formed for the pur- 
 pose of being engaged in and carrying on any trade or dealing 
 for gain or profit, or to carry on such trade or dealing in person. 
 Now it would seem difficult to contend that a company for the 
 formation of a railway does noi fall within the definition of a co- 
 partnership or association formed for the purpose of carrying on 
 a dealing for gain, and consequently any such spiritual person, 
 by becoming a manager or director of such a company, would 
 be offending against the above act. But a spiritual person may 
 become a subscriber to any such company, provided it consist 
 of more than six members or shareholders.
 
 Provisional Formation of a Company. 21 
 
 jectors of a railway scheme should likewise be care- 
 ful not to put forward any person as a member of 
 the provisional committee without the proper autho- 
 rity for the purpose, as by so doing they may be 
 guilty of a false pretence within the stat. 7 & 8 Vict, 
 c. 110, s. 65. (s) 
 
 26. 2dly. Of (he publication of the scheme, and 
 herein of the prospectus or advertisement usually put 
 forward by the projectors for this purpose. The 
 object of such prospectus is of course to induce 
 
 (s) That section is as follows : " And forasmuch as great in- 
 jury has been inflicted upon the public by companies falsely pre- 
 tending to be patronized or directed or managed by eminent or 
 opulent persons ; now, for the purpose of preventing such false 
 pretences, be it enacted, with regard to every company or pre- 
 tended company whatsoever, whether registered or not, and 
 whether now existing or not, that if any person shall make any 
 such false pretences, knowing the same to be false, in any adver- 
 tisement or other paper, whether printed or written, and whether 
 published in any newspaper, or handbill, or placard, or circular, 
 then every such person shall forfeit for every such offence a sum 
 not exceeding ten pounds." A question has been made upon 
 this section, whether it is enough for a complainant, in order to 
 launch his case, to show that his name has been improperly used 
 without his authority, express or implied, or whether he must 
 go further, and give evidence of a guilty knowledge in the party 
 charged. Considering that this question of guilty knowledge is 
 one peculiarly within the knowledge of that party, it would seem 
 that proof of it cannot be requisite in the first instance on the 
 part of the complainant ; but that on his showing that his name 
 has been used without his authority, the burthen must then lie on 
 the party charged of disproving such knowledge ; and such ac- 
 cordingly was the construction which, in a late case at the Bow- 
 street police-court, the magistrate seemed inclined to put upon 
 the above section.
 
 22 Railways hy Statute. 
 
 parties to become subscribers :. it accordingly de- 
 scribes the advantages that the project holds out to 
 subscribers, and invites applications for shares, a 
 form for which purpose it usually contains. It fol- 
 lows that il constitutes the basis of the contract be- 
 tween the parties till the execution of the company's 
 provisional instrument ; it being upon the footing of 
 the prospectus that the parties who comply with the 
 above invitation have their shares allotted to them, 
 and pay their deposits, {t') As the prospectus ex- 
 ercises so important an influence in determining the 
 relations of the parties, it follows that its terms 
 should be carefully considered before it is put forth 
 to the world. In particular, if it is the intention of 
 the promoters to reserve any portion of the shares 
 for some particular purpose of the company, this 
 should be disclosed on the face of the document, as 
 otherwise the promoters might perhaps be taken to 
 have impliedly parted with the requisite power of 
 reservation. Further, the promoters should care- 
 fully avoid the inserting in the prospectus any exag- 
 gerated or ungrounded statements of the nature of the 
 undertaking, &c., as it then might become a question, 
 whether the parties who should be induced to accept 
 letters of allotment on the faith of such statements 
 would not be entitled to be relieved in equity against 
 the effect of such acceptance, (m) or even to raain- 
 
 (t) See judgment of Tindal, C. J., in Fox v. Clifton, 6 Bing. 
 777 ; S. C. 4 M. & P. 676. 
 
 (u) See Stainbank v. Feriiley, 9 Sira. 556; Colt v. Wonllas- 
 ton, 2 P. Wms, 154 ; Lovell v. Hicks, 2 You. & Coll. 46 ; Small 
 V. Attwood, 1 Younge, 416, 460 ; Green v. Barrett, 1 Sim. 45 ; 
 Blain V. Agar, 1 Sim. 37 ; 2 Sim. 289.
 
 Provisional Formation of a Company. 23 
 
 tain an action against the promoters for the preju- 
 dice sustained by them in consequence of acting on 
 the supposed false representation, {x) 
 
 Looking at the ordinary terms of the document in 
 question, it cannot be taken to create a partnership 
 between the subscribers, but simply to point to the 
 future formation of a partnership, (y) 
 
 27. Srdly. Of the allotment of shares. We have 
 seen that the prospectus usually gives a particular 
 form of application for shares : a party accordingly 
 wishing to become a subscriber to the proposed pro- 
 ject must transmit an application {z) in the proper 
 form to the committee, by way of answer (a) to which, 
 if approved of, he receives a letter of allotment. 
 By this letter the applicant is informed of the suc- 
 cess of his application, and requested to pay his 
 deposit, (viz. one-half per cent, authorized by the 
 registration act, and the additional ten per cent, 
 required by the standing orders,) the form of a 
 
 (a) See Taylor v. Aihton, 11 M. & \V, 401. 
 
 (y) Fox V. Clifton, 6 Bing. 777 ; S. C. 4 M. & P. 676 ; 
 Pitchford v. Davis, 5 M. & W. 2 ; Whitehead v. Barron, 2 
 Mood. & Rob. 248 ; Nackells v. Crosby, 3 B. & C. 814 ; Bourne 
 V. Freeth, 9 B. & C. 622 ; S. C. 4 M. & R. 512 ; Wood v. 
 The Duke of Argyle, 22 Law Journ. C. P. 96 ; S. C. 6 M. & 
 Gr. 928. 
 
 (s) I'his form usually requires the applicant to state his name, 
 business and residence. He should also be required lo state his 
 place of business, if any, with a view to the return of subscribers 
 to the registry office. 
 
 (a) Semble, the answer of the company ought to be given 
 within a reasonable time afrer the application has been made ; 
 or the applicant may become entitled to treat his offer as at an 
 end, and consequently to refuse to accept a subsequent allot- 
 ment of shares.
 
 24 Railways by Statute. 
 
 receipt for which is given at the foot of the letter. 
 Usually also, in order to guard against the party's 
 obtaining an indefeasible interest in the undertaking, 
 unless he pays his deposit and executes the sub- 
 scribers' d:ed and parliamentary contract, as re- 
 quired by the letter, it reserves to the committee, 
 in default of his doing so, the power of reallotting 
 the shares. Sometimes (and indeed in point of pru- 
 dence it would seem that it should always do so) 
 the letter embraces a still further stipulation, viz. 
 that the above receipt is not to be transferable ; as 
 this may release the committee from all possible 
 obligation to recognize a transfer in case of its being 
 attempted, {b) 
 
 This letter amounts to a final acceptance on the 
 part of the company of the party's proffer to become 
 a subscriber on the terms of the prospectus, con- 
 tained in his letter of application, and consequently, 
 taken in conjunction with the latter documents, con- 
 stitutes the agreement between the parties up to the 
 time of the execution of the subscribers' deed and 
 parliamentary contract. Consequently, where it 
 contains the above conditions as to the payment of 
 the deposit, &c., the holder must, if he wishes to 
 ensure his interest in the concern against forfeiture, 
 take care to pay the deposit at the stipulated time, 
 and otherwise comply with the conditions of the 
 letter. 
 
 28. 4thly. In order to the full attainment of the 
 object in question, the company is usually consti- 
 stuted under two jjrovisional instruments, the one 
 termed a 'parliamentary contract, the other, a sub- 
 
 (b) See Collier on Railways, App. p. 10.
 
 Provisional Formation of a Company. 25 
 
 scribers' agreement (s). The main object of the 
 former is to provide for the payment of each sub- 
 scriber's due quota towards the expenses of the 
 undertaking ; of the latter, to prescribe the neces- 
 sary rules and regulations for the due management 
 of the concern till the act of parliament is passed. 
 The former accordingly binds the parties to the 
 payment of their subscriptions towards the under- 
 taking of which it specifies the nature and object, 
 at the same time giving a discretionary power to 
 the directors from time to time to alter or vary 
 the scheme as they may find expedient ; it also 
 sometimes makes provision, in the event of the 
 application for an act failing, for the subscribers 
 duly contributing towards the expenses incidental 
 to the undertaking. The subscribers' agreement 
 names the provisional committee, and prescribes the 
 necessary regulations for the temporary management 
 of the concern, which it delegates to such committee ; 
 it also specifies the amount of capital and the num- 
 ber of shares into which it is to be divided, and pro- 
 vides for the payment of a deposit by every sub- 
 scriber, and the future making of calls, &c. 
 
 29. The letter of allotment, we have seen, usually 
 intimates the place at which the above instruments 
 are deposited for execution, and fixes the time for 
 the purpose. The holder accordingly (who it is sup- 
 posed has paid his deposit and procured the banker's 
 receipt for the same) should produce this docu- 
 ment at that time and place, and thereupon execute 
 the deeds in question. Upon this he receives a scrip 
 certificate, (a) which entitles him to be registered as 
 
 («) See Forms, post, Appendix. 
 
 (a) This last-mentioned document, it may be remarked, like 
 
 c
 
 26 Railways hy Statute. 
 
 a proprietor after the passing of the act of parlia- 
 ment. 
 
 30. From what has been here said, it follows that 
 the constitution of a railway company, till it obtains 
 its act of incorporation, stands on a twofold basis, 
 viz. the two provisional instruments above described, 
 and the provisions of the 7 & 8 Vict. c. 110, (so far, 
 that is to say, as they are applicable to such species 
 of company,) and, consequently, is only to be ascer- 
 tained by an estimation of the combined eftect of 
 both. 
 
 Sect. 2. — Of the Powers, Privileges and Incapacities 
 of a Company for the Making of a Railway in its 
 provisiotial Stale. 
 
 31. The powers &c. of a company so situated are 
 referable to a twofold source, — its own provisional 
 instruments, and the act for the Registration of 
 Joint Stock Companies. To ascertain the measure 
 and extent of such powers, it is proposed to take a 
 view of the powers derived from either source : first, 
 severally ; and, secondly, in combination. 
 
 32. And first, of the powers given by the provisional 
 deeds of the company. These, according to the usual 
 provisions of the above instruments, are mainly to 
 
 the letter of allotment, sometimes contains a stipulation to the effect 
 that it is not to be transferred without the assent of the directors. 
 The effect of its insertion would seem to be the same as remarked 
 ;n regard of letters of allotment. In case of a refusal on the 
 part of the company to deliver the scrip, possibly under a letter 
 of allotment running in the usual form, there might be a remedy 
 against the committee ; see Fitzpatrick on Railway Rights, &:c. 
 p. 17.
 
 Powers, 8j'c. of a Company for making a Railway. 27 
 
 carry the undertaking, as described in the parlia- 
 mentary contract, into effect, and for that purpose 
 to cause surveys to be made, to obtain estimates, to 
 make arrangements with landowners, &c., and gene- 
 rally to adopt all the requisite measures for obtaining 
 the act of parliament, &c. 
 
 SS. Secondly. Of the powers vesting in the com- 
 pany on registration ; and first, on iwovisional regis- 
 tration. 
 
 ] St. On obtaining a certificate of provisional re- 
 gistration, the company are enabled to act provi- 
 sionally. The following are the acts expressly enu- 
 merated in the statute of which they are thereupon 
 made capable; viz. they may assume the name of 
 the intended company, but, coupled with the words 
 " registered provisionally ;" open subscription lists; 
 allot shares ; receive deposits at a rate not ex- 
 ceeding IO5. for every 100/. per share, and such 
 further deposit as may be required by the standing 
 orders of either house of parliament, and perform 
 such other acts only as may be necessary for ob- 
 taining an act of parliament, (a) 
 
 But they are forbidden to make calls, or to pur- 
 chase, contract for, or hold lands, or to enter into 
 contracts for any services, or for the execution of 
 any works, or for the supply of any stores, (a) The 
 statute, however, excepts from this prohibition, 1st, 
 contracts for such services and stores or other things 
 as are necessarily required for the establishing of 
 the company; 2ndly, any purchase or other contract 
 to be made conditional on the completion of the 
 
 («) 7 & 8 Yict. c. no, s. 23. 
 c 2
 
 28 Railways by Statute. 
 
 company, and to take effect after the act of parlia- 
 ment shall have been obtained; Srdly, contracts for 
 services in making surveys and performing all other 
 acts necessary for obtaining an act of incorpora- 
 tion. (6) 
 
 There are certain acts which the promoters, &:c. 
 are forbidden to do, before obtaining a certificate of 
 provisional registration, under pain of forfeiting for 
 every offence a sum not exceeding 251. Such are 
 he taking of any money in consideration of the 
 Jlotment of, or by way of deposit for, any shares, 
 <fec. in the company; the issuing any scrip, &c.; or 
 advertising the existence, &c. of the company ; or 
 making any contract in the name or on the behalf 
 of such company. The above penalty any one is 
 empowered to sue for and recover in an action of 
 debt.(c) 
 
 A certificate of provisional registration, it is to be 
 remarked, continues in force for twelve months and 
 no more ; though at the expiration of that period it 
 may be renewed, on application for that purpose, 
 for alike period, and indeed it must be so, if, during 
 the continuance of the first certificate, the company 
 have not procured their act, or been completely 
 registered, {d) 
 
 34. 2ndly. Of the powers, privileges and incapa- 
 cities of the company on complete registration. Upon 
 obtaining a certificate of complete registration, the 
 company are enabled by the above statute to exer- 
 
 (b) 7 & 8 Vict. c. 110, s. 23. 
 
 (c) Ibid. s. 24. 
 
 (d) Ibid. s. 23. And semble, on the expiration of the second 
 certificate, a third may be obtained, and so on for any number 
 of provisional certificates.
 
 Powers, ^c. of a Company for making a Railway, 29 
 
 cise the like powers (e) as any other joint stock 
 company completely registered under such statute, 
 
 (e) For the enumeration of these powers, see 7 & 8 Vict. c. 
 110, s. 25, which is as follows : 
 
 '' And be it enacted, that on the complete registration of any 
 company being certified by the registrar of joint stock companies, 
 such company and the then shareholders therein, and all the suc- 
 ceeding shareholders, whilst shareholders, shall be and are hereby 
 incorporated as from the date of such certificate by the name of 
 the company as set forth in the deed of settlement, and for the 
 purpose of carrying on the trade or business for which the com- 
 pany was formed, but only according to the provisions of this act, 
 and of such deed as aforesaid, and for the purpose of suing and 
 being sued, and of taking and enjoying the property and effiects of 
 the said company ; and thereupon any covenants or engage- 
 ments entered into by any of the shareholders or other persons 
 with any trustee on behalf of the company, at any time before 
 the complete registration thereof, may be proceeded on by the 
 said company and enforced in all respects as if they had been 
 made or entered into with the said company after the incorpo- 
 ration thereof; and such company shall continue so incorporated 
 until it shall be dissolved, and all its affairs wound up; but so as 
 not in anywise to restrict the liability of any of the shareholders 
 of the company under any judgment, decree, or order for the pay- 
 ment of money which shall be obtained against such company, 
 or any of the members thereof, in any action or suit prosecuted 
 by or against such company in any court of law or equity ; but 
 every such shareholder shall, in respect of such monies, subject 
 as after mentioned, be and continue liable as he would have been 
 if the said company had not been incorporated ; and thereupon 
 it shall be lawful for the said company, and they are hereby em- 
 powered, as follows ; that is to say, 
 
 1. To use the registered name of the company, adding thereto 
 
 " Registered ;" and also, 
 
 2. To have a common seal (with power to break, alter, and 
 
 change the same from time to time), but on which must 
 be inscribed the name of the company ; and also, 
 
 3. To sue and be sued by their registered name in respect of
 
 30 Railways by Statute. 
 
 subject, however, to certain exceptions engrafted 
 thereon by the statute. 
 
 any claim by or upon the company upon or by any per- 
 son, whether a member of the company or not, so long as 
 any such claim may remain unsatisfied ; and also, 
 
 4. To enter into contracts for the execution of the works, and 
 
 for the supply of the stores, or for any other necessary 
 purpose of the company ; and also, 
 
 5. To purchase and hold lands, tenements, and hereditaments 
 
 in the name of the said company, or of the trustees or 
 trustee thereof, for the purpose of occupying the same as 
 a place or places of business of the said company, and 
 also, (but nevertheless with a licence, general or special, 
 for that purpose, to be granted by the Committee of the 
 Privy Council for Trade, first had and obtained,) such 
 other lands, tenements, and hereditaments as the nature 
 of the business of the company may require ; and also, 
 
 6. To issue certificates of shares ; and also, 
 
 7. To receive instalments from subscribers in respect of the 
 
 amount of any shares not paid up ; and also, 
 
 8. To borrow or raise money within the limitations prescribed 
 
 by any special authority ; and also, 
 
 9. To declare dividends out of the profits of the concern ; and 
 
 also, 
 
 10. To hold general meetings periodically, and extraordinary 
 
 meetings upon being duly summoned for that purpose ; 
 and also, 
 
 11. To make from time to time, at some general meeting of 
 
 shareholders specially summoned for the purpose, bye 
 laws for the regulation of the shareholders, members, 
 directors, and officers of the company, such bye laws not 
 being repugnant to or inconsistent with the provisions 
 of this act or of the deed of settlement of the company ; 
 and also, 
 
 12. To perform all other acts necessary for carrying into effect 
 
 the purposes of such compan}',andinall respects as other 
 partnerships are entitled to do :
 
 Powers, ^c. of a Company for making a Railway. 31 
 
 In the first place, the statute prohibits the exer- 
 cise by the company of the power to enter into con- 
 
 And the said company are hereby empowered and required, — 
 
 13. To appoint from time to time, for the conduct and super- 
 
 intendence of the execution of the affairs of the company, 
 a number of directors, not less than three, for a period 
 not greater than five years, with or without eligibility to 
 be re-elected at the expiration of the term, as may be pre- 
 scribed by any deed of settlement or bye law ; and also, 
 
 14. To appoint and remove one or more auditors, and such 
 
 other officers as the deed of settlement under which the 
 company shall be constituted may authorize : 
 Subject nevertheless, with respect to all such powers and privi- 
 leges, to the provisions of this act, and subject also to the provi- 
 sions of the deed of settlement of the company or any other 
 special authority : Provided always, with regard to any company 
 for executing any bridge, road, cut, canal, reservoir, aqueduct" 
 waterwork, navigation, tunnel, archway, railway, pier, port, har- 
 bour, ferry or dock, which cannot be carried into execution with- 
 out obtaining the authority of parliament, that on the complete 
 registration of any such company, and before such company shall 
 have obtained its act of incorporation or other act whereby the 
 authority of parliament shall be granted for executing such work, 
 it shall not be lawful for any such company or the directors or 
 officers thereof to exercise the hereinbefore mentioned power to 
 enter into contracts, otherwise than conditionally upon obtaining 
 such act, or to exercise the power to purchase and hold lands as 
 aforesaid, or to exercise the power to receive instalments from 
 shareholders beyond the sum or per centage necessary to be de- 
 posited in compliance with the standing orders of either house of 
 parliament, or such other sum as may be requisite for obtaining 
 the act of incorporation or other act for granting the authority 
 of parliament to execute such works, or to exercise the power to 
 borrow money as aforesaid, or to exercise the power to declare 
 dividends as aforesaid ; and, subject to these last-mentioned 
 exceptions, all the powers by this enactment hereinbefore given 
 to any company completely registered, except the general power 
 to perform all acts necessary for carrying on the business of the 
 company, may be exercised as fully by any such company so
 
 52 Railways hy Statute. 
 
 tracts otherwise than conditionally upon obtaining 
 an act of incorporation, of the power to purchase 
 and hold lands, of the power to receive instalments 
 from shareholders beyond the sum necessary to be 
 deposited in compliance with the standing orders of 
 either house of parliament, or such other sum as 
 may be requisite for obtaining the company's act of 
 incorporation, of the power to borrow money, and 
 of the power to declare dividends ; it further ex- 
 cepts out of the above gift of powers the general 
 power to perform all acts necessary for carrying on 
 the business of the company ; but the company, at 
 the same time, is still to be at liberty to perform all 
 acts necessary for obtaining an act of incorpora- 
 tion. (/) 
 
 completely registered as by any other company so completely 
 registered : Provided always, that it shall be lawful for any 
 such company to perform all acts which may be necessary for 
 obtaining an act of incorporation or other act for obtaining the 
 authority of parliament lo execute its works as aforesaid, any 
 thing herein contained to the contrary notwithstanding ; and 
 that upon obtaining such act of incorporation or other such act 
 as aforesaid, ox at the time of the coming into operation of such 
 act as shall be thereby appointed, all the powers which any 
 such company shall obtain by virtue of this act, and all the pro- 
 visions and regulations of this act which shall apply to such 
 company, shall cease and determine, except so far as shall be 
 otherwise provided by such act of incorporation or other such 
 act as aforesaid." 
 
 {f) Assuming a railway company to be registered completely 
 (and what are the motives likely to induce it to take such a step 
 we have already had occasion to notice), it becomes a very im- 
 portant question how far the various provisions of the statute 
 applicable to joint stock companies in general completely regis- 
 tered extend to any such company. Notwithstanding then the 
 proviso in the second clause, which declares that the act is not
 
 Powers, Sfc. of a Company for making a Railway. 33 
 
 From the time of the company's obtaining their act 
 of incorporation, or at any rate of such act coming 
 
 to extend to companies for executing parliamentary works, ex- 
 cept as specially provided in the act, it seems almost impossible 
 to suppose, upon a fair purview of the act, that the main provisions 
 in question were not intended by the legislature to embrace such 
 companies as much as any other species of joint stock company ; 
 otherwise (to give one instance among many of the conclusions 
 flowing from the opposite doctrine,) it comes to this, that the act 
 must be supposed to give a power to parliamentary companies to 
 appoint directors and auditors, and yet to be silent on the sub- 
 ject of their powers, qualifications, &c. ; or again, that it accords 
 certain limited powers of contracting to parliamentary companies, 
 and yet leaves the exercise of the powers in question by such 
 companies utterly unprovided for. 
 
 The hypothesis that has just been under consideration leading to 
 conclusions so repugnant to the almost obvious intention of the 
 legislature, (an hypothesis, it is to be remarked, which is built 
 upon the terms of the above proviso,) it only remains to be 
 considered, whether a sense may not be put upon those terms, 
 which, without doing too great violence to their natural import, 
 may yet obviate this repugnancy. 
 
 One view, then, that, it is submitted, may be taken of such pro- 
 viso, is to consider it as an abridgment of what the subsequent spe- 
 cial provisions of the acton the subjectof parliamentary companies 
 are at large, and consequently as inserted from excess of caution, 
 and in order to guard against any possible inadvertence on the part 
 of the framers of the act in omitting to make those special provi- 
 sions in the subsequent part of ihe act, which it was intended 
 should be made; or again, it may be said, that the act does in 
 effect specially provide for the extension of the enactments in 
 question to parliamentary companies by virtue of the special pro- 
 vision which it makes for the complete registration of such com- 
 panies ; inasmuch as that provision operates once for all to bring 
 such companies within the operation of the act, and consequently 
 whenever the act subsequently speaks of completely registered 
 companies generally, it may fairly be intended to comprehend this 
 c 5
 
 34 Railways hy Statute. 
 
 into operation, the company ceases to be liable 
 to the operation of the registration act, and the 
 powers, &c. incidental to complete registration like- 
 wise cease and determine, (g') 
 
 35. 2dly. From this purview of the provisions of 
 the registration act it would appear that as far as re- 
 gards companies provisionally registered, it operates 
 to curtail the powers of action which such companies 
 previously enjoyed as constituted under the ordinary 
 provisions of the subscribers' deed ; whereas in the 
 case of companies completely registered, though in 
 some respects it curtails yet in others it enlarges their 
 powers ; on the one hand it entitles them to use a 
 common name and common seal, and to sue and be 
 sued by that name, things which they were clearly 
 
 particular class of companies just as much as if it had made ex- 
 press mention of them, there being nothing, of course, either in 
 the express terms of the particular enactment, or deducible by 
 way of reasonable inference from its general nature and import, 
 to exclude them. 
 
 Supposing parliamentary companies to fall within the above 
 provisions, it may be proper briefly to notice the principal of 
 them in this place: — As to the duties of the company with 
 respect to registration, and the making of returns, and the like, 
 see sects. 11, 12, 14, 15, 16, 17, 18. As to the powers and qua- 
 lifications of directors, and the validity of their acts, see sects. 27 
 — 31. As to books and accounts of company, and right of 
 inspecting same, see sects. 32 — 37. As to the appointment of 
 auditors, their power?, &c., see sects. 38 — 43. As to contracts 
 of company, their requisites, Sec, see sects. 44 — 46. As to bye 
 laws, see sects. 47, 48. As to rights, &c., of shareholders, see 
 sect. 26. As to capital of company, certificates of shares, iStc, 
 see sects. 49 — 56. As to judgments against company, and the 
 obtaining execution against shareholders, contribution, &c., see 
 sects. 66 — 68. 
 
 (^) 7 £c 3 Vict. c. 110, s. 25.
 
 Powers. <§'C. of a Company for making a Railway. So 
 
 incompetent to do by the common law ; on the 
 other, it restricts them from purchasing land, and, 
 in general, entering into any contract otherwise than 
 conditionally upon the passing of their act. 
 
 Sect. 3. — Of the Dulles of such Company, and herein 
 more particularly of the preliminary Steps to and 
 of the obtaining the Act of Parliament. 
 
 36. The duties of the projectors &c. of an in- 
 tended railway company, which it is proposed to 
 notice in this place, mainly relate to the two follow- 
 ing points ; 1st, the allotment of shares and receipt 
 of deposits, and 2dly, the taking the necessary steps 
 in order to the obtaining an act of parliament, 
 
 37. As to the allotment of shares and the receipt 
 of the deposits. We have already had occasion to 
 notice what is the nature of the prospectus and the 
 object with which it is published. It in effect 
 amounts to an invitation to the public to participate 
 in the benefits of the proposed undertaking on the 
 terms set forth in such prospectus. The fiduciary 
 character of the projectors in such case commences 
 from the time tiiey begin to deal with the public, 
 and is of course controlled in equity by the repre- 
 sentations then made to the public, (i) Hence, if 
 
 (i) See judgment of Vice- Chancellor in Foss v. Harhoitle, 2 
 Hare, 489 ; Hichens v. Congreve, 4 Russ. 562, and remarks 
 thereon in judgment of Vice-Chancellor in Fnss v. Harbottle, See 
 also Societi) of f radical Knowledge v. Abbott, 2 Beav. 559 ; there 
 it appeared that four projectors of a public company obtained a 
 charter, by which they and all persons who might become sub- 
 scribers were incorporated. The capital was declared to be
 
 36 Railways by Statute 
 
 the prospectus is silent on the subject of the reser- 
 vation of shares, it may be questioned whether they 
 can of their own heads take upon themselves to ex- 
 ercise such a power, and whether consequently in 
 the event of their doing so, a court of equity would 
 not interfere to compel them to proceed to an allot- 
 ment of the remaining shares with all reasonable 
 speed, supposing at least it were shown that there were 
 fitting applicants willing to accept such allotments ; 
 more especially if tJie reservation were intended not 
 to serve any object of the company, but to enable 
 the managers to dispose of such shares for their pri- 
 vate advantage. In the latter case indeed, sup- 
 posing any profits were shown to have accrued from 
 such a transaction, it would seem that the court might 
 possibly be inclined to go a step further, and compel 
 the receivers to account for those profits for the ge- 
 neral benefit of the company. 
 
 A similar principle would seem to apply to the 
 case where the committee suffers any portion of the 
 deposits to remain unpaid. The subscribers who 
 have paid their deposits might, it is conceived in 
 such a case, proceed in equity against the com- 
 mittee and the defaulters to compel the payment of 
 such deposits, or if there were nothing in the pro- 
 
 20,000/., which was to be divided into 400 shares. Before any 
 other subscribers had joined, the four projectors, of common 
 assent, divided the 400 shares amongst themselves, accounting to 
 the corporation (as was alleged) for 12,000/. and not 20,000/. 
 They afterwards disposed of the shares. A bill being subse- 
 quently filed by the corporation against the projectors, impeach- 
 ing the transaction and to compel them to pay the full consider- 
 ation, it was held, that though at the time they were the only 
 persons interested in the company, yet it was not competent for 
 them to take the shares without paying the full consideration.
 
 Duties of a Company for making a Railway. 37 
 
 spectus or letters of allotment rendering it obligatory 
 on the holders to pay up their deposits, at any rate 
 to compel the committee to proceed to a forfeiture 
 and reallotment of the shares held by such defaulters. 
 
 The managers of the company should be care- 
 ful, in the allotment of the shares, not to issue 
 more than they are authorized to do, as they may 
 thereby subject themselves to an action at the suit 
 of a bond fide holder, who is unable, in consequence, 
 to get his shares registered on the passing of the 
 act. (k) 
 
 38. 2dly. We have seen that, among the things 
 which it is mainly important for the projectors of an 
 intended line of railway to do, one is to comply with 
 the regulations adopted by parliament on application 
 for bills of this nature. These regulations (/) may 
 be classed under four heads, as they relate, 1. To 
 the preliminary steps ; 2. To the petition ; 3. To 
 the frame of the bill ; and 4. To the proceedings in 
 either house of parliament. 
 
 These heads relate so exclusively to the law and 
 practice of parliament, that it has been thought un- 
 necessary to notice them further in this place, except 
 so far as regards one of such regulations, the prac- 
 tical working of which, having been the subject of 
 some little discussion, may perhaps require to be 
 considered more particularly, viz. that which pro- 
 vides that no railway bill shall be read the third 
 time unless a certain proportion (m) of the probable 
 
 (k) Diet. arg. in Dalq\. Thnmpson, 10 M. & W. 315. 
 
 (/) See standing orders and summary of parliamentary pro- 
 ceedings in course of passage of bill through Parliament, post, 
 Appendix. 
 
 (m) By the standing orders this proportion is now three- 
 fourths.
 
 38 Railways by Statute, 
 
 expense of the proposed works have been sub- 
 scribed for, &c. 
 
 39. Where a railway bill is about to be brought 
 into parliament, and only a small number of the 
 shares subscribed for, it is no uncommon thing for 
 the members of the provisional committee, or some 
 of the other parties mainly interested in the success 
 of the proposed undertaking, to subscribe for such 
 additional shares as are requisite to make up the 
 number fixed by the above rule, in order to enable 
 the act to pass. This is done upon the understand- 
 ing that the additional shares thus subscribed for are 
 to be held in trust for the company, and that the 
 immediate subscribers are to be exonerated from 
 all personal liability in respect of them. Upon the 
 passing of the act, steps are usually taken to give 
 effect to the above understanding, either, it may be, 
 by a release and abandonment of all interest in such 
 additional shares made on the part of the holders to 
 the company, or by a resolution of the company 
 ordering that the trusts be annulled and the shares 
 transferred to some officer of the company to hold at 
 their disposal. The question that arises in any such 
 case is of course as to the effect of such a transac- 
 tion, — whether the subscription is to be considered 
 a fraud on tlie legislature, and the bill obtained in 
 consequence of it, and every thing done under that 
 bill a nullity or not. The answer woidd seem to be 
 obvious, viz. that it is for the houses of parliament 
 to determine what is a subscription for shares that 
 will satisfy them ; consequently, if they are duly 
 satisfied that such additional subscriptions are suffi- 
 cient within the view and construction of their own 
 order, and think themselves authorized, upon the
 
 Duties of a Company for mahing a Railway. 39 
 
 strength of them, to sanction the passing of the bill, 
 a court of law cannot take upon itself to say, simply 
 on such a state of facts, that those subscriptions are 
 a fraud and a nullity, and that the houses of parlia- 
 ment allowed themselves to be entrapped into the 
 measure of passing the bill by a mere colourable 
 compliance with their own orders. Such subscrip- 
 tions must then, it seems, be deemed good ; and 
 those* making them substantially holders of such 
 shares, liable in respect of them to all the operations 
 which are to be performed by the shareholders in 
 general, and at the same time possessed of the like 
 liberty of dealing with those shares, that any ordi- 
 nary subscriber for a less quantity of shares has of 
 dealing with his. If the subscription is, in the first 
 instance, valid, it cannot, it is conceived, become of 
 no avail, because subsequently the parties, who have 
 entered into so large a subscription, take certain 
 steps, unauthorised by the act, and therefore, of 
 necessity, wholly inefi'ectual, for the purpose of es- 
 caping from the obligations imposed on them by 
 their subscription. On the contrary, the first act 
 must, it seems, be deemed still valid, and the second 
 invalid; the subscription good, and the means taken 
 to effect a subterfuge from it void ; and the parties 
 consequently remain, as they were originally, bound 
 to make good their subscriptions, notwithstanding 
 any secret acknowledgment of trust, or any declared 
 intention on the part of the company to relieve them 
 from their responsibility as trustees. Hence, when 
 calls are made on the shareholders, they are as much 
 liable as the other shareholders ; and so far from 
 their having an equity, under the supposed circum- 
 stances, to be relieved against the payment, a court
 
 40 Railways hy Statute. 
 
 of equity would never allow the directors of the 
 company so to proceed as to make calls upon the 
 general body of the subscribers, and to make none 
 in respect of such additional shares, (n) 
 
 40. Although, where parties take shares in trust 
 for the company, they are primarily liable to the 
 payment of calls like ordinary shareholders, still, it 
 is conceived, like any other trustees, they have a 
 right to be reimbursed by their cestui que trusts 
 any such outlay, as an expense incurred in the exe- 
 cution of their trusteeship, (o) 
 
 Parties, in short, taking shares under such circum- 
 stances must be regarded as quasi guarantors of the 
 success of the undertaking ; whatever be the ulti- 
 mate event of such undertaking, whether it fail or 
 prosper, they must pay their contributions in com- 
 mon with the other members of the company ; but 
 in the latter case they may, it seems, come upon 
 the funds of the company to reimburse themselves 
 what they are out of pocket on account of the com- 
 pany. From the principle just laid down, viz. that 
 parties subscribing for the above purpose become 
 substantially subscril)ers, and so stand on the same 
 footing as ordinary shareholders, it would seem to 
 follow that they must likewise be entitled to all the 
 privileges of shareholders, such, for instance, as the 
 
 (n) Preston v. The Grand Collier Dock Compmy, 2 R. Cas. 
 358 ; S. C. U Sim. 328 ; S. C. nom. Preston v. Giiyon, 19 Law 
 Journ. Ch. 73 ; Mangles v. The Grand Collier Dock Company, 
 2 R. Cas. 359 ; S. C. 10 Sim. 519. See also Playfair v. The 
 Birmin''ham, Bristol and Thames Junction Railway Company, 
 1 R. Cas. 640. 
 
 (o) Judgment of Vice-Chancellor in Preston v. The Grand 
 Collier Dock Company, ubi supra.
 
 Duties of a Company for making a Railway. 41 
 
 attending meetings and voting, acting as directors 
 (supposing them, that is to say, to be in other 
 respects qualified), and the like. The validity, 
 therefore, of meetings and of acts done at such 
 meetings cannot be disputed, because that, to con- 
 stitute the requisite number of shareholders at any 
 such meeting, such persons must be taken into ac-/ 
 count, (p) 
 
 Sect. 4. — Of the Rights and Liabilities incidental to 
 the above State of Things. 
 
 I. Internal Rights and Liabiliiies of Shareholders. 
 II. Liabilities to Third Parties. 
 
 41. Under this branch of our subject a twofold 
 state of rights and liabilities presents itself for con- 
 sideration : 1st, between the subscribers themselves; 
 2nd, between the subscribers and third parties. The 
 first head again subdivides itself into two, according 
 as the subscribers are viewed as one homogeneous 
 body, or as distinguished into simple subscribers 
 and the governing body or directory. 
 
 42. I. Internal Rights and Liabilities, (q) — 
 Subscribers viewed simply as one body, without regard 
 
 (p) See note (n), ante, p. 40. 
 
 (tj) It has been assumed in the text that the parties, whose 
 rights and liabilities it is proposed to investigate, have signed the 
 subscribers' deed and parliamentary contract, the prior state of 
 things being necessarily, from the very nature and end of par- 
 liamentary companies, limited in tlieir case to a very brief period. 
 The present condition, however, of railway speculation in this 
 kingdom is such, as renders it by no means improbable that
 
 42 Railways by Statute. 
 
 to the differences established between them by the 
 terms of their association. Regarded in this light, 
 
 questions may arise touching this prior state of things ; and it 
 may therefore be proper briefly to consider the rights and liabi- 
 lities of parties while so circumstanced. Now there are two 
 possible combinations of events that require to be here con- 
 sidered ; first, where the project goes off before the arrival of 
 the time for the execution of the subscribers' agreement and the 
 parliamentary contract. The second, where though that time is 
 arrived, yet holders of letters of allotment neglect or refuse to 
 sign the above instruments. In the first ca?e the subscribers 
 may, generally speaking, recover the amount of their deposits. 
 (Nockells v. Crosby, 3 B. & C. 814). In the latter the exact 
 relative position of the parties must depend on the terms of the 
 prospectus, taken in conjunction with the letter of application 
 for shares and the letter of allotment. As a general rule then, 
 it would seem that a party who applies for shares and receives an 
 allotment thereof m pursuance of such application, cannot after- 
 wards withdraw from the undertaking to which he has thus 
 acceded, and discharge himself of the attendant liabilities, with- 
 out the consent of the other subscribers. (See Kidwelly Cayial 
 Compani) v. Raby, 2 Price, 93. As to the effect of a transfer, see 
 post, p. 45, &c.). If such a party therefore subsequently refuse to 
 pay his deposit, or to execute the subscribers' agreement and par- 
 liamentary contract, semble, an action would lie against him at 
 the suit of the provisional committee, the very act of his appli- 
 cation for shares (where at least it contains, as it usually does, 
 an engagement to accept the shares if allotted to him, &c.), 
 followed up by the subsequent allotment, irrevocably binding 
 him to undertake all the liabilities contemplated thereby. Or, 
 supposing the interests of the undertaking required it, it might 
 be competent for the committee to file a bill in equity against 
 the defaulters to enforce a specific performance of that engage- 
 ment. 
 
 Although by the express terms of the letter of allotment, the 
 allotment is to be void, in case of the allottee failing to comply 
 with the conditions it imposes on him, yet this cannot, it 
 should seem, be construed to give an option to the allottee to 
 avoid the allotment, by neglecting or refusing to comply with
 
 Rights, ^'c. of Company foi- making a Railway. 43 
 
 the different members, it has been said, must be 
 looked on as partners, being persons associated 
 together for a common purpose. One subscriber 
 cannot therefore maintain an action against another 
 on a cause of action relating to the common concerns 
 of the undertaking ; a subscriber, for instance, who 
 acts as agent to the subscribers, cannot maintain an 
 action for work done by him in that character against 
 another subscriber, (r) 
 
 43. But if an act be done by one member of a 
 company upon the credit or for the benefit of another 
 individually, it may be made the ground of an action 
 
 those conditions, but it must be understood to mean voidable 
 only at the election of the provisional committee. (Doe d. 
 Bryanv. Bancks, 4 B. & Aid. 401 ; Rfde v. Fair, 6 M. & S. 125 ; 
 Ariisby v. Woodward, 6 B. & Cr. 519.) And in alike manner, 
 when the letters of allotment speak of the shares being forfeited 
 or re-allotted, in ease of the allottee's not paying his deposit, 
 this must be understood not absolutely, but at the election of the 
 committee. Of course, if the committee should choose to avail 
 themselves of the power usually reserved to them by letters of 
 allotment in such cases of default, viz. of reallotting the shares, 
 that would terminate the original allottee's liabilities. 
 
 (r) Holmes V. Higgins, 1 B. & C. 74 ; it makes no difTerence 
 that the shares are held, not by the plaintiff himself, but by 
 another in trust for him ; see Goddard v. Hodges, 3 Tyr. 209 ; 
 S. C. 1 C. & M. 33. So where a resolution was passed by a 
 company, of which both plaintiff and defendant were directors, 
 to rent plaintiff's house, and a draft agreement was drawn up 
 in pursuance of the resolution, but not signed or stamped, and 
 the company subsequently occupied the premises, it was ruled, 
 in an action for use and occupation brought by the plaintiff 
 against a co-director, that, as the plaintiff was a co-director, 
 the law would imply he was a co-tenant, and therefore unable 
 to support his action, and that to get rid of this implication, be 
 was bound to show a special agreement. Chadwick v. Clarke, 
 23 Law Journ. C. P. 233.
 
 44 Ra'dnays by Statute, 
 
 against him by the former, even though it have a 
 reference more or less remote to the affairs of the 
 company ; as, for instance, where a shareholder 
 advances money on the credit of a director for the 
 purposes of the company ; though in such a case it is 
 of course a question for the jury whether the money 
 were lent upon the credit of the company at large 
 or of the director individually, (s) So, where a 
 party pays the amount of an attorney's bill jointly 
 retained by himself and others, who had acted as 
 co-directors of a proposed railway company, on their 
 personal responsibility, to defend them in an action 
 for debts contracted on account of the concern, it 
 has been held that he is entitled to sue the others 
 for contribution. (0 And the like rule applies 
 where there is an express contract with a particular 
 member, (u) 
 
 44. The subscribers are next to be viewed as dis- 
 tinguished into simple subscribers, and a governing 
 body or directory. The simple subscriber (to com- 
 mence with a view of his position) is liable to the 
 performance of all those stipulations which he takes 
 upon himself by the agreements just considered, 
 such, for instance, as the payment of his deposit and 
 the like ; and in case of any breach of those stipu- 
 lations, he may of course be sued for the same. 
 
 This liability can only be determined in two ways; 
 1st, by the dissolution of the company without ob- 
 taining their act of parliament ; 2nd, in the event of 
 the act being obtained, by a transfer of the party's 
 
 (s) Colley V. Smith and others, 2 Moo. & R. 96. 
 
 (i) Edger v. Kiwpp, 6 Scott's N. R. 707. 
 
 {u) Chadu-i'k v. Claike, 23 Law Journ. C. P. 233.
 
 Rights, ^c. of Company for making a Railway. 45 
 
 shares, followed up by the registration of the trans- 
 feree pursuant to the act. (v) 
 
 45. On the other hand, he is entitled to insist on 
 the directors administering the funds with which 
 they are intrusted for the purposes of the under- 
 taking, and generally that they shall act up to the 
 ends for which they are invested with their autho- 
 rity. 
 
 46. With regard to the interest of the individual 
 subscriber in the undertaking, this requires to be 
 considered in two lights; 1st, as it stood before the 
 passing of the late statute for the registration of 
 joint stock companies ; and, 2ndly, as to how far it 
 has been affected by that act. 1st. Then before the 
 passing of the act in question, a subscriber to a 
 provisional company acquired no legal interest in 
 the undertaking, nothing that could be correctly 
 termed a share, the transferable sht;res of the capital 
 and the proprietorship, if it may be so called, being 
 the result of the company's act of incorporation, and 
 of the powers and privileges given by the act. A 
 party, indeed, in subscribing to an undertaking of 
 that nature, naturally proportioned his subscription 
 to the amount of the shares that he ultimately hoped 
 to possess ; and these subscriptions were very com- 
 monly divided into what were termed shares, and 
 certificates granted as evidence of the right to shares. 
 And not only were such certificates granted, but 
 very commonly bought and sold, and thereby made 
 the means of gaming and improvident speculation, 
 and even in some cases of frauds of a most dan- 
 
 (d) As to tl;is point, see post, cap 3, sect. 4, sub-sect. 3.
 
 46 Railways by Statute. 
 
 gerous character, (v) Such dealing, however, in cer- 
 tificates, where it was tainted with fraud, was of 
 course clearly illegal, and even, in the absence of all 
 fraud or improper practice in the particular case, its 
 validity was open to doubt; (a;) though upon the whole 
 the better opinion would seem to have been that it was 
 lawful. It would seem to follow, as a consequence 
 of this supposed legality of bargains for scrip, letters 
 of allotment, &c., that it gave a bon& fide purchaser 
 a right to be registered on the passing of the act. (y) 
 So likewise either party to the contract might have 
 enforced it against the other, though the party so 
 seeking to enforce the contract would, of course, have 
 been bound in such a case to show a performance of 
 all conditions precedent on his part. Supposing, 
 therefore, the shares not to have been transferable 
 without the assent of the directors, it of course lay 
 upon the vendor, where he songht to recover the price 
 of his scrip from the purchaser, to show that he had 
 obtained that assent ; and consequently, if he failed 
 to do this, he could not support his action, (s) But 
 
 (v) Judgment of the Master of the Rolls in Jackson v. Cocker, 
 2 R. Cas. 375 ; S. C. 4 Beav. 59. 
 
 (i) See judgment of the jMaster of the Rolls m Jackson v. 
 Cocker, ubi supra ; Josephs v. Pebrev, 3 B. & C. 639 ; but see 
 Daly V. Thompson, 10 M. & W. 309, and judgment of Lord 
 Denman, C. J. in London Grand Junction Railway Cotnpant) v. 
 Freetnun, 2 M. & Gr. 638 ; .S. C. 2 R. Cas. 460. See also Har- 
 rison V. Heathern, 6 M. & Gr. 81, where it was laid down that 
 the issuing shares, purporting to be transferable at the will of the 
 holder, did not necessarily render a company illegal. 
 
 (y) See Daly v. Thompson, 10 M. & W. 309. This doc- 
 trine, it should seem, supposes the shares to have been originally 
 transferable without the assent of the directors, or else that such 
 assent had been previously obtained. 
 
 (2) Wilkinson v. Lloyd, Leeman v. Lloyd, 23 L J. Q. B. 165.
 
 Rights, Si'C. of Company for making a Railway. 47 
 
 the purchaser, though he was liable for the price of 
 the scrip, was not at any rate, under such circum- 
 stances, impliedly bound, in the absence of a special 
 contract, to accept a legal transfer of the shares in 
 case of the act subsequently passing, or to indemnify 
 the seller against liabilities to calls, in respect of such 
 shares, (a) And where the purchaser liad paid the 
 purchase money, in case of a subsequent failure of the 
 consideration he became entitled to rescind the con- 
 tract, and recover back the money. As, for instance, 
 if it were made necessary by the terms on which the 
 vendor held his shares to procure the assent of the 
 directors to the transfer, if he failed to do this, the 
 
 (a) Jackson v. Cocker, ubi supra. Certain persons, previous 
 to soliciting an act of incorporation for forming a railway, exe- 
 cuted a subscribers' deed and a parliamentary contract ; and 
 they received certain scrip certificates as evidence of their sub- 
 scriptions, and upon which a certain amount had been paid. 
 The act of incorporation passed, providing for the registration of 
 shares, empowering the company to make calls, subjecting de- 
 faulters in payment to actions for debt, and declaring that their 
 shares should be forfeited, and providing a form for the legal 
 transfer, &c. of shares. The plaintiff, a party to the subscribers' 
 and parliamentary deeds, previously to the passing of the act, sold 
 his scrip certificates, and having been, subsequently to the act pass- 
 ing, required to pay calls on his shares, filed a bill praying that the 
 purchaser might be declared to have taken an equitable assign- 
 ment of those shares, and might indemnify the plaintiff from all 
 past and future liabilities from the time of the sale. It was held, 
 that the defendant, the purchaser, not having signed the sub- 
 scribers' contract or parliamentaty deeds, was in no way liable to 
 the company ; that there being no special contract between the 
 parties, binding the purchaser to accept a legal transfer of the 
 shares, or to indemnify the plaintiff from his liabilities to the 
 company, a court of equity would not r;iise an implied contract 
 for those purposes, and the bill must be dismissed with costs 
 Ibid.
 
 48 Railnays by Statute. 
 
 purchaser might rescind the contract, and recover 
 back the price of the shares, (^b) And semble, gene- 
 rally, as what the scripholder sold in any such case 
 was not any valid legal interest in the undertaking, 
 but the mere hope or expectancy of obtaining a share 
 in case of the company's act passing, it followed, 
 that if such hope were frustrated by reason of the 
 subsequent abandonment of the project, the pur- 
 chaser might call on the seller to repay him the pur- 
 
 (6) Kempsnn v. Saunders, 2 C. & P. 366. A company was 
 formed for the purpose of making a railway, one of the regula- 
 tions of which was, that 15,000 shares, of 50^ each, should be 
 raised, and then that application should be made to parliament; 
 and another was, that all transfers, to be valid, were to be ap- 
 proved of by the committee. The company, after continuing for 
 rather more than a year, was dissolved, because no eligible line 
 of road could be found. It was held that this was not an illegal 
 company under the act 6 Geo. 1, c. 18, and that a party who 
 had bought certain shares in it might recover back the money 
 paid for them from the vendor, who had not complied with the 
 last-mentioned regulation of the company, on the ground that the 
 consideration had failed ; and this although the purchaser had 
 not handed back the scrip receipts he received. So also where 
 A. contracted to buy of B. certain shares in a public company, 
 the deed of settlement of which provided that the assent of the 
 directors should be necessary in order to complete the title of the 
 purchaser, A. paid the purchase money to B., who executed the 
 transfers, but, in consequence of disputes between him and the 
 directors, was unable to obtain their consent to the transfer of 
 the shares. It was held, that B. was bound to procure the 
 assent of the directors to the transfer; secondly, that on his 
 failure to do so, A. was entitled to rescind tlie contract, and to 
 maintain an action for money had and received, to recover the 
 purchase money ; and this although the value of the s!iares had 
 fallen: and, lastly, that the return of the transfers was not a 
 condition precedent to bringing the nction. Leeman v. Lloyd, 
 Wilkiuson V. Lloyd, 23 L. J. Q. B. 165.
 
 Rights, 8fC. of Company for making a Railway. 49 
 chase money, and the latter again might have re- 
 course to the party from whom he purchased, and 
 so on back to the original projectors, (c) 
 
 47. Secondly. This state of things would not 
 appear to have been materially altered by the late 
 statute for the registration of joint stock companies 
 even as regards companies whose formation has 
 commenced (c?) since the 1st of November, 1844, 
 
 (c) Kempson v. Saunders, 4 Bing. 5; S.C.2 Car. & P. 366. 
 From the report of this case in C. & P. it would appear that by 
 the regulations of the company transfers of shares were not to be 
 valid without the assent of the committee, which the vendor had 
 not obtained ; but as that point is not noticed in the judgment of 
 the court above, perhaps the case may be considered an autho- 
 rity for the more general position laid down in the text. (See 
 also Watliins v. Huntley, 2 C. & P. 410, note.) On this view 
 of the case it must, it is conceived, rest upon the ground, that in 
 the case of a sale of railway scrip, the law implies a warranty 
 by the vendor of the act's passing, &c., a ground which would 
 seem to be highly questionable. (See Fitzpatrick on Railway 
 Rights, &c. p. 26.) 
 
 (d) Where an old company undertakes the formation of an 
 extension line of railway subsequently to the 1st November, 
 1844, this is not to be regarded as a new company formed after 
 that date. The Leeds and Bradford Railway Company were 
 incorporated by act of parliament previously to 1st November, 
 1844, Subsequently to that period, at a meeting of the Leeds 
 and Bradford Railway Company, it was resolved, that the com- 
 pany should undertake the formation of an extension line of 
 railway from the Leeds and Bradford Railway at S. to C, &c., 
 and that in order to raise the necessary funds an additional 
 capital should be raised by the creation of new shares, which 
 
 D
 
 50 Railways by Statute. 
 
 and which continue only provisionally registered ; 
 as it has been expressly determined that the 26th 
 section (e) of the above act, which renders illegal 
 
 were to be offered in the first place to the proprietors of the old 
 company. A parliamentary contract was accordingly entered into, 
 which recited " that it had been deemed expedient that a railway 
 should be made by the Leeds and Bradford Railway Company 
 from S. to C, in extension of and uniting with the parliamentary 
 line of the Leeds and Bradford Railway." An act was eventually 
 obtained enabling the Leeds and Bradford Railway Company to 
 construct the contemplated extension, and for that purpose to 
 raise a further capital by new shares, &c. The shares men- 
 tioned in the above resolutions were all allotted to the share- 
 holders in the Leeds and Bradford Railway Company, though, 
 when the act passed, there were shareholders in the extension 
 line who were not shareholders in the original line. It was 
 held that the company in question was not a new company 
 formed since the 1st November, 1844. Shaw v. Holland, 4 
 Railw. Cas. 150; S. C. 24 Law Journ. Exch. 87. 
 
 (e) That section is as follows : " That no shareholder of any 
 joint stock company completely registered under this act shall 
 be entitled to receive any dividends or profits, or be entitled to 
 the remedies or powers hereby given to shareholders, until he 
 shall have executed the deed of settlement of the said com- 
 pany, or some deed referring thereto, and also have paid up all 
 instalments or calls due from him, and shall have been registered 
 in the registry office aforesaid ; and further, that it shall be law- 
 ful for every shareholder who shall have signed such deed, and 
 paid up such instalments or calls, and shall have been registered, 
 and he is hereby entitled — 
 
 To be present at all general meetings of the company; and 
 
 also. 
 To take part in the discussions thereat; and also,
 
 Rights, ^c. of Company for making a Railway. 51 
 contracts for shares in joint stock companies not 
 completely registered, and subjects the parties con- 
 cerned in them to a penalty, does not apply to cora- 
 
 To vote in the determination of any question thereat, and 
 that either in person or by proxy, unless the deed of 
 settlement shall preclude shareholders from voting by 
 proxy ; and also, 
 To vote in the choice of directors, and of every auditor to be 
 elected by the shareholders ; 
 Subject nevertheless to the provisions of this act, and of the 
 deed of settlement of the company or other special authority, 
 so far as such provisions shall either regulate or restrict the 
 exercise of such powers, but not so as to deprive such share- 
 holders thereof; and further, with regard to subscribers and 
 every person entitled or claiming to be entitled to any share in 
 any joint stock company the formation of which shall be com- 
 menced after the first day of November one thousand eight hun- 
 dred and forty-four, that until such joint stock company shall 
 have obtained a certificate of complete registration, and until any 
 such subscriber or person shall have been duly registered as a 
 shareholder in the said registry oflRce, it shall not be lawful for 
 such person to dispose, by sale or mortgage, of such share, or 
 of any interest therein, and that every contract for or sale or dis- 
 posal of such share or interest shall be void, and that every per- 
 son entering into such contract shall forfeit a sum not exceeding 
 ten pounds ; and that for better protecting purchasers it shall be 
 the duty of the directors of the company by whom certificates of 
 shares are issued to state on every such certificate the date of the 
 first complete registration of the company, as before provided ; 
 and that if any such director or officer knowingly make a false 
 statement in that respect, then he shall be liable to the pains and 
 penalties of a misdemeanor." 
 
 D 2
 
 52 Railways hy Statute. 
 
 panics of the description of railway companies in 
 general, viz. companies for the formation of rail- 
 ways, harbours, &c., which cannot be carried into 
 execution without obtaining the authority of par- 
 liament. Whatever therefore was the effect of a 
 dealing in the scrip, &c. of such companies, and the 
 rights and liabilities incidental thereto prior to the 
 passing of the act in question, that act, it would 
 seem, has made no material alteration in any of 
 these respects, (f) 
 
 48. Let us view next the legal position of the 
 directors, &c, as against the general body of the sub- 
 
 (/) Young V. Smith, 4 Railw. Cas. 135; S. C. 24 Law 
 Journ. Exch. 81. That was an action of assumpsit for work 
 and labour, &c. ; the defendant pleaded in substance that the 
 work was done, ficc. in and about the buying, &c. on the de- 
 fendant's account of shares in certain joint stock companies 
 formed subsequently to the 1st November, 1844, and not com- 
 pletely registered in the manner pointed out by the 7 & 8 Vict, 
 c. 110. Upon demurrer to the replication, the plea was held 
 bad, upon the ground that it must be taken upon the pleadings 
 that the companies, in respect of the sale, &c, of shares in which 
 the action was brought, were of the species which required the 
 assistance of parliament to carry them into eflecl, and that as 
 regarded all such companies, the second section (see this section, 
 ante, p. 14) of the statute expressly provided that the act should 
 not extend to them,eife/)f as thereinafter specially provided, and 
 that in the 26th section of the said act, which was the one that 
 forbad the dealing in the shares of joint stock companies until 
 complete registration, there was no special provision with re- 
 ference to companies of the class in question.
 
 Rights, (^'c. of Compamj for making a Railway. 53 
 
 scribers. The former, then, are entitled to insist 
 upon the performance of all covenants on the part 
 of the latter, contained in the provisional instru- 
 ments of the company. 
 
 49. Looking at the terms upon which the sub- 
 scribers pay their deposits, they can have no right, 
 it is conceived, in general to demand a return thereof 
 from the managers, further than such portion as 
 may remain after discharging the expenses incidental 
 to the undertaking, even though the scheme prove 
 eventually unsuccessful ; unless, indeed, the entire 
 scheme were shown to be a mere bubble, and the 
 subscribers generally to have been entrapped into it 
 by the fraud or misrepresentation of the managers. 
 
 50. If the directors issue more shares than 
 they are authorised by their powers to do, they 
 thereby, it is conceived, render themselves liable to 
 an action at the suit of a bond fide holder, who is 
 unable, in consequence, to procure his shares to be 
 registered on the passing of the act. (e) Or, if it 
 could be shown that they had conspired to fabricate 
 such additional shares, they might even be punished 
 by a criminal prosecution. (/) 
 
 51. II. Liabilities to Third Parties. Under 
 this head of our subject a twofold state of liability 
 presents itself for consideration: 1st, That o? the 
 managing body ; 2nd, That of the general body of 
 subscribers. In the former case the substantial ques- 
 tion seems to be, to whom is the credit given ? In 
 general it is the committee that are liable to pay any 
 persons with whom contracts are made for the bene- 
 
 (e) Diet. arg. in Dalif v. Thompson, 10 M. & W. 315. 
 (/) Rex V. Mott, 2 C. & P. 521.
 
 54 Railways by Statute. 
 
 fit of the company as such, unless it appear that the 
 latter contracted to be paid out of some particular 
 fund, and not to look to the committee for pay- 
 ment, [g) Or if a person render services to a pro- 
 visional company in expectation of being elected to 
 some office under the company, he cannot recover 
 for such services, though the scheme eventually 
 comes to nothing, as he cannot convert what was 
 merely anticipatory into a money contract. So if a 
 party agree to render certain services to a projected 
 railway company at a stipulated price, and to look 
 for payment for any thing beyond to the company 
 when it is established, he cannot recover against his 
 employers any thing beyond that price, (h) In like 
 manner, where it appears that the party seeking to 
 charge the directors was originally employed, not 
 
 (g) Kerridge v. Hessey, 9C. & P. 200; Mnneypenny v. Hart- 
 land, 1 C. & E« 352. This principle of the liability of the 
 managers seems now completely admitted ; so much so, that in 
 an action against the projectors of an intended company, tried 
 at the Sittings after Michaelmas Term, 1844, the defendants 
 made no attempt to dispute their liability generally, but paid 
 money into court, and rested their defence on the sufficiency 
 of the sum so paid in to meet the plaintiff's claim. See also 
 Rastrick v. Lambert, MS. Ca. App. post; Fignoles v. Lefroy, 
 MS. Ca. ibid. The effect of the statute (7 & 8 Vict. c. 110), it 
 may be proper to remark, on the liabilities of provisional com- 
 mittee-men, would seem to be, not to do away with any prior 
 media of proof on this point, but merely to furnish in the re- 
 gistry clear and unequivocal evidence as to who are committee- 
 men A party therefore who expressly or impliedly authorizes 
 the use of his name as a provisional committee-man, cannot 
 afterwards get rid of the liabilities incidental thereto simply by 
 refusing to sign the written consent, &c. which is necessary to 
 enable the company to register him as such. 
 
 {h) So ruled in Tottie v. Allen, London Special Jury, 1844.
 
 Rights, ^-c. of Company for making a Railway. 55 
 
 by the directors, but by some third party who called 
 into existence the directors, it becomes a question 
 for the jury whether the credit was not rather given 
 to such third party than to the directors. (i) And if 
 a party can be shown to have been actively con- 
 cerned in the formation of a company, and to have 
 called into existence the very directors whom he 
 seeks to charge, that renders it more probable that 
 some special agreement existed between the par- 
 ties. ( j) 
 
 52. Where a new member is introduced into the 
 directory, he is not, as a matter of course, liable on 
 contracts concluded by the old members before his 
 entry upon the office ; though, if he can be shown 
 to have adopted such contracts, that may make him 
 liable, {k) 
 
 53. But to charge a party as a manager, there 
 must be some evidence of his having acted as such, 
 or at any rate assented to become such. (/) It is not 
 enough, therefore, to render a party liable as a ma- 
 nager simply to show that he on one occasion ex- 
 pressed his willingness to become a director in case 
 the scheme could be carried out, and that his name 
 appeared in a prospectus printed for private circula- 
 tion, without any thing to connect the party with that 
 prospectus. (wj) Neither can a plaintiff recover for 
 claims prior to the period at which he can prove the 
 defendant to have acted as a director, (n) 
 
 (t) Stephenson v. Radge, MS. Ca. App. post. 
 (j) Beetham v. Cook, MS. Ca. App. post, 
 (fc) Kerridge v. Hessey, ubi supra. 
 
 (J) Proof of his being registered as such would of course be 
 sufficient. See ante, n. (^), p. 54. 
 
 (m) Simon v. Fectni-yMS. Ca. post, App. 
 
 (n) Elkinlou V. FerguiUDii, Warwick Summer Assizes, 1841.
 
 56 Railways by Statute. 
 
 54<. A party who is once proved to have acted as 
 a committee-man is not released from the liabilities 
 incidental to that character, because he subsequently 
 declines to take shares (o) in the company, or be- 
 cause he ceases to act as a member of the com- 
 mittee, (p) To effect this he must take the neces- 
 sary steps to divest himself of his character of 
 director, (q) as till then he is in the like situation 
 with the member of a firm, who, after he has seceded 
 from the firm, still allows his name to remain ex- 
 posed over the shop door, (r) And even this may 
 be insufficient where, by virtue of express agreement, 
 or by the course of their mutual dealing, an actual 
 partnership has been created between himself and 
 the other members of the committee ; (s) but he 
 must still further procure the assent of those mem- 
 bers to his withdrawal. A party's withdrawal from 
 the committee cannot, it should seem, operate to 
 terminate his character as a subscriber, or conse- 
 quently to relieve him from the liabilities incidental 
 thereto. 
 
 55. Next, as to the liability of the general body 
 of the subscribers. Although the subscribers are 
 inter se partners, yet (looking at the terms upon 
 which they become such, and the general character 
 of the partnership,) it would not seem that, by simply 
 
 (o) Vignoles v. Lefroy, MS. Ca. post, App. 
 
 (p) Doubleday v. Hhisket, 7 Btng. 1 10. 
 
 (9) Semble, by removing his name from the list, and adver- 
 tising his retirement in the GazetJe, aad giving express notice to 
 tlie parties with whom the company have been in the habit of 
 dealing. 
 
 (r) Judgment of Tindal, C. J. in Doubleday v. Mtiskett, ubi 
 supra. 
 
 (s) See Lewis on Liability of Subscribers, &c. p. 16.
 
 Rights, <^c. of Company for making a Railway. 57 
 
 acceding thereto, a subscriber must necessarily be 
 taken to authorise the managing body to pledge his 
 individual credit in their dealings with third parties. 
 It may be questioned, therefore, whether a sub- 
 scriber, as such, can be made liable for the contracts 
 or dealings of the directors. But if a subscriber, 
 in point of fact, interfere (^) in the management of 
 the concern, or hold himself out as giving an order, 
 he then becomes liable. (?<) 
 
 56. There is one particular class of engage- 
 ments (x) that the provisional committee often find 
 themselves called on to conclude either before or in 
 the course of their bill passing through the houses 
 of parliament, and which, therefore, seems to require 
 special mention in this place, viz. contracts for the 
 withdrawal of opposition in parliament to the passing 
 of the bill. In treating of this class of contracts, 
 the main question to be considered is their validity ; 
 in other respects, viz. as respects their general re- 
 quisites, the laws of construction, and the incidents 
 attaching on them, they would seem to stand on 
 much the same footing as any other description of 
 contracts. The question thus proposed for consider- 
 ation may be regarded under three points of view, 
 as respects, 1st, The validity of such contracts ge- 
 nerally ; 2nd, The character of the persons with 
 
 (t) As to what is such an interference as to have this effect, 
 see Harrison v. Heathom, 6 M. & Gr. 81 ; Wood v, Duke of 
 Argyle, 22 L. J. C. P. 96, S. C. 6 M. & Gr. 928 ; Steigenberger 
 V. Carr, 3 M. & Gr. 191 ; Dickenson v. Valjiy, 10 B. & C. 128 ; 
 Lake v. Duke of Argyle, 23 L. J. Q. B. 73. 
 
 («) Bell V. Franch, 9 C, & P. 66. 
 
 (i) See further as to such agreemeats, post, cap. 3. 
 
 D 5
 
 58 Railways by Statute. 
 
 whom they are concluded ; 3rd, The objects that 
 they may lawfully be made to embrace. 
 
 57. 1st. Then it is clear that the withdrawal of 
 opposition in parliament is a good consideration for 
 a contract ; (y) every landowner has a right, when 
 his property is threatened to be taken for the pur- 
 poses of a railway, to make the best bargain that 
 he can for the sale of his land, or for compensation 
 for injuries to it ; and there is not in such a case any 
 common obligation on the various owners of pro- 
 perty along the line of the intended railway to place 
 themselves on the same footing in regard of the pro- 
 jectors, (s) And however large the price at which 
 the projectors choose to buy off the party's oppo- 
 sition, however disproportionate to the value of the 
 property or their own means, it constitutes no objec- 
 tion per se to the contract, (a) 
 
 58. 2nd. A party is not precluded from bargain- 
 ing for the preservation of his property simply 
 because he is a peer or member of parliament, other- 
 wise he would be placed in a worse condition than 
 any private individual. Unquestionably if it were 
 made part of the agreement with a person so cir- 
 cumstanced, that he should either give or withhold 
 his vote for or against a particular measure, this 
 would render the bargain corrupt and illegal, and 
 consequently void ; illegality, however, is not to be 
 
 (y) Vanxhali Bridge Compaitii v. Earl Spencer, 2 Mad. 356 ; 
 S. C. Jac. 64. 
 
 (:) Lord Howden v. Simpso,,, 10 A. & E. 793 ; S. C. affirmed 
 on appeal to House oi Lords, 3 R. Cas. 294 ; Lord Fetre v. 
 Eastern dmiilies Railway Company, 1 R. Cas. 462. 
 
 (o) Lord Petre v. Eastern Counties Railiray Company, ubi 
 supra.
 
 Rights, 8fc. of Company for making a Railway. 59 
 
 presumed, and therefore in the absence of proof to 
 the contrary, drawn either from the tenor of the 
 agreement or from extraneous sources, the intend- 
 ment would be (b) that the party's quality of peer, 
 &c. in no way affected the bargain, and that he was 
 left, notwithstanding the supposed agreement, to 
 exercise his free judgment and give or withhold his 
 vote according to his conscience upon the measure 
 when it came before him in his legislative capacity. 
 59. 3rd. As to the objects for which a party may 
 stipulate. A party then may conclude such a con- 
 tract, not simply with the view of securing himself 
 an adequate recompense for the threatened injury to 
 his property, but likewise by way of precaution 
 against the projectors coming upon it at all, and in 
 order to drive them to take a different line. Even 
 though the payment, upon which the party actuated 
 by this double motive insists, be beyond all propor- 
 tion to the amount of substantial injury that the 
 railway is calculated to inflict on his property, and 
 must, if exacted, exhaust the funds of the company 
 to such a degree as to render them incapable of 
 completing their project, yet this, it seems, cannot 
 be taken to invalidate the contract, (c) Nay, though 
 a party stipulate in express terms for the projectors 
 subsequently endeavouring to deviate their line, and 
 bind them to take the necessary steps for the pur- 
 pose, the agreement is not on that account invalid. 
 Though, in this case, if it were originally intended 
 by the parties to the contract to conceal the part of 
 
 (6) Lord Howden v. Simpson, ubi supra ; see also Lord Petre 
 V. Eastern Counties liailway Company, ubi supra. 
 
 (c) Lord Petre v. Eastern Counties Railway Company, ubi 
 supra.
 
 60 Railways by Statute. 
 
 it touching the deviation from the legislature, it 
 might make a difference ; inasmuch as the trans- 
 action might be regarded as a fraud on the legis- 
 lature, the parties having agreed to make a false 
 representation to that body by stating the object of 
 the adventurers to be to carry one line into effect, 
 and concealing the design of applying for another, (d) 
 }n no case, it is conceived, could a stipulation of 
 the above nature be open to be impugned on the 
 ground of its being a fraud on the other landowners 
 on the line of the intended railway, even though 
 calculated to operate in some respects prejudicially 
 to their interests, there being no common obliga- 
 tion, as we have before remarked, on the different 
 landowners to place themselves on the same foot- 
 ing, (d) 
 
 60. A party may stipulate, as part of the consi- 
 deration for his withdrawing his opposition, for the 
 payment of a fixed sum of money at a given time 
 after the passing of the act, and in this case no sub- 
 sequent alteration in the plans of the projectors can 
 relieve them from their obligation, (e) even though 
 the line ultimately adopted by them altogether avoids 
 the party's land. 
 
 (d) Lord Howden v. Simpson, 10 A. & E. 793 ; S. C. 3 R. 
 Cas. 294, affirmed on appeal to the House of Lords. 
 
 (e) Lord Enuden v. Simpson, 10 A. & E. 793 ; 5. C. 3 R. 
 Cas. 294, affirmed on appeal to the House of Lords.
 
 ( 61 ) 
 
 CAP. II. 
 
 OF THE ACT OF PARLIAMENT. 
 
 Sect. 1.— Of the Validity of such Act. 
 2. — Of the Construction of the Act. 
 
 Sect. 1. — Of the Validity of the Act. 
 
 61. In general, the validity of an act, constituting 
 a railway company, cannot be disputed, though it 
 may possibly be otherwise, where the act is ob- 
 tained by fraud or misrepresentation practised upon 
 the legislature. But where the false representation 
 is embodied in the act, or there is otherwise a mis- 
 recital of any important particular, («) that, it may 
 be said, is no ground for impugning the authority 
 of the act, inasmuch as it can hardly be competent 
 for a party to question the truth of what is stated 
 as a fact in the act of parliament, (a) 
 
 (a) See judgment of Alexander, C. B. in Cromford Railway 
 Company v. Lacey, 3 Y. & J. 80, where the point was raised 
 though not decided, as the case ultimately went off on a different 
 ground.
 
 62 Act of Parliament. 
 
 Sect. 2. — Of the Construction of a Railway Act. 
 
 I. — Of the General Principles of Construction. 
 II. — Of the Principles applicable to particular Clauses. 
 III. — Of those applicable to several Acts relating to the same 
 Company. 
 
 62. I. Of the general principles of construction 
 applicable to the entire act. A railway act is to be 
 viewed as a bargain between the adventurers and 
 the public, the terms of which are expressed in the 
 statute, (b) The fundamental rule of construction 
 accordingly in all such cases is established to be 
 this, viz. that the adventurers can claim nothing, 
 which is not clearly given them by the statute ; on 
 this may be engrafted what follows, as a necessary 
 corollary from it, viz., that any ambiguity in the 
 terms of the contract must operate against the ad- 
 venturers, and in favour of the public, (e) Although 
 the meaning of a railway act should be clear and 
 explicit, the criteria, it may be remarked, by which 
 that meaning is to be ascertained, are the same as in 
 the case of any other instrument, viz. the language, 
 and the sense or reason of the law as collected from 
 the entire act. As a general rule, the language is 
 to be understood in its ordinary sense ; but if such 
 a construction lead to an absurdity, or is manifestly 
 repugnant to the express or implied intention of the 
 
 (6) Blakemnre v. Glamorganshii-e Canal Company^ 1 My. 5c 
 K. 154. 
 
 (c) StourMdge Canal Company v, Wheeley, 2 B.& Ad. 793 
 Priestly v. Fovlds, 2 Railway Cas. 441 ; S. C. 2 M. & G. 175 ; 
 see also Parker v. Great Western Railway Company, 7 Scott's 
 N. R. 835 ; S. C. 22 Law Journ. C. P. 105.
 
 Construction of Act. 63 
 
 legislature, then the grammatical sense of the words 
 may be modified, to obviate such absurdity or cure 
 such repugnance, {d) 
 
 63. Where a railway act, as is usually the case, 
 concludes with the legislative declaration that it is 
 to be taken as a public act, and judicially taken 
 notice of as such by all judges, &c., it cannot be 
 treated as a mere private assurance, more especially 
 considering its general public nature, manifested in 
 every section, (e) 
 
 64. A party interested in the subject-matter of 
 a private act of parliament, is liable to have his 
 rights affected by its provisions, though it may have 
 been introduced and past without due notice being 
 given to him. (/) 
 
 Q>5. II. Of the rules of construction, ajjpUcable to 
 some of the more important provisions usually found 
 in railrvay acts, and herein. 1st, of the porvcr of taking 
 land. A power of this nature, calculated to ope- 
 rate in a manner so highly derogatory to private 
 property, must, it seems, receive a strict interpre- 
 tation. If, in the supposed exercise of such a 
 power, the company enter upon or take any man's 
 land, they must clearly establish their authority to 
 do so ; and if the words of the statute on which 
 they rely are ambiguous, every presumption is to be 
 
 (d) Rex V. Pease, 4 B. & Ad. 41 ; Turner v. The Sheffield 
 and Rotherham Railway Company, 10 M. & W. 425 ; S. C.3 
 Railway Cas. 230. 
 
 (e) Per Shadwell, Vice-Ch., Hargreaves v. Lancaster and 
 Preston Junction Railway Company, 1 Railw. Cas. 430. 
 
 (^f) 'Edinburgh, ii;c. Railway Company \, Wauchope, 8 CI, &c 
 Fin. 711: 5. C. 3 R. Cas. 232.
 
 64 Act of Parliament. 
 
 made against the company, and in favour of private 
 property, {g) 
 
 QQ. So likewise the provisions for the taking of 
 toll by the company must be couched in clear and 
 unambiguous language ; or, if the words fairly admit 
 of different meanings, then that meaning must be 
 adopted which is most favourable to the interests of 
 the public, and most against that of the company, 
 because the company, in bargaining with the public, 
 ought to take care to define distinctly what payments 
 they are to receive, and because the public ought 
 not to be charged, unless it be clear that it was so 
 intended by the legislature, {h) 
 
 67. On the other hand, clauses providing com- 
 pensation for parties whose property is injured by 
 the railway, ought, it seems, to be liberally, and not 
 strictly construed, so as to advance the remedy in- 
 tended by the legislature in making such provi- 
 sions. (?) 
 
 68. Some forms prescribed for the internal go- 
 vernment of a railway company, may be imperative, 
 and others only directory, (/c) 
 
 (g) Scales V, Pickering, 4 Bing. 448 ; Webb v. The Man- 
 Chester and Leeds Railway Company, 4 My. & Cr. 120 ; S. C. 
 1 Railway Cas. 599, per Lord Cottenham, Ld. Ch. 
 
 (/(.) See Cildartv. Gladstone, 11 East, 675 ; Barrett \. The 
 Stockton and Darlington Railway Company, 2 Railw. Cas. 465 ; 
 S. C. 2 M. & Gr. 134 ; in error, 3 M. & G. 956. 
 
 (i) Reg. V. The pMstern Counties Railway Company, 2 A. 6c 
 E. N. S. 347 ; S. C. 2 Railway Cas. 752 ; Bell y. Hull and 
 Selby Railway Company, 6 M. & W. 699 ; S.C.2 Railway Cas. 
 286. 
 
 (/c) Judgment of Wigram, Vice Ch. in Foss v. Harbottle, 2 
 Hare, 495. See further as to this distinction between directory 
 and imperative clauses in railway acts, post, cap. 3 and cap. 7.
 
 Construction of Act. 65 
 
 69. III. Of the rules of construction applicable to 
 several acts relative to the same company. It must 
 often happen, that, from some change in the pur- 
 poses of the company, the lapse of time, &c., a fur- 
 ther act or acts becomes requisite, in order to vary 
 or extend the powers given by the original act. In 
 this case, the subsequent and prior acts, being 
 framed upon one system, having one object in view, 
 and being in pari materia, may be construed toge- 
 ther as if they were one law. 
 
 The subsequent act, instead of particularizing 
 the powers and capacities that it intends to confer, 
 ordinarily embodies the provisions of the prior act 
 by a general clause of reference. The fair con- 
 struction to be put upon such a clause is, that all 
 the general powers and provisions given and made 
 in the former act shall be virtually incorporated in 
 the latter, but not such as are of a special nature, 
 and have a peculiar application to the subject-matter 
 of the prior act. (I) 
 
 70. A subsequent act, where it is so intended, 
 may have the effect of reviving proceedings taken 
 under a prior act, or even of ratifying and healing 
 what is irregular in the same, (am) To have this 
 latter effect, however, the later act must contain a 
 clear, direct, and particular ratification of such pro- 
 ceedings. A railway act enacted that no calls 
 
 (/) Sirhowy Tramroad Company v. Jones, and Hnmfray v. 
 Jones, 3 A. & E. 640, n. (a); Alt. Gen. v. Eastern Counties 
 and North Eastern Railway Company, 2 Railw. Cas. 832 ; S. C. 
 10 M. & VV. 263. 
 
 (m) The Stratford and Moreton Railway Company v. Stratton, 
 2 B. & Ad. 518; see also Smith v. Goldsworthy, 4 A. & E. 
 N. S. 430.
 
 66 Act of Parliament, 
 
 should be made at an interval of less than two 
 months from each other, and that none of the powers 
 of the act should be put in force till the sum of 
 £ZS,5(iO was subscribed. The committee began 
 the works before the above sum was subscribed, 
 and made a single order for the payment of various 
 calls at intervals of two months. A subsequent act 
 noticed in a recital, that the capital of ,£33,500 had 
 not been subscribed, but that the company had pro- 
 ceeded in their works, had incurred debts, &c., and 
 that a certain sum was due from defaulters in pay- 
 ment of calls ; it at the same time provided for the 
 carrying on the works, and making further calls, 
 and enacted that the powers of the former act (ex- 
 cept where expressly altered) should remain vested 
 in the company, though the ,£33,500 had not been 
 subscribed. It was held to ratify what had been 
 done in breach of the latter enactment, but not to 
 recognize the calls as valid, (n) 
 
 (n) The Stratford and Moreton Railway Company v. Stratton, 
 2 B. & Ad. 518 ; see also Smith v. Goldsworthy, 4 A. & E. 
 N. S. 430.
 
 ( 67 ) 
 CAP. III. 
 
 OF THE COMPANY, AS CONSTITUTED UNDER THE ACT. 
 
 Part I. — Of the Legality of a Railway Company. 
 II. — Of the Constitution of a Railway Company. 
 
 Part I. 
 
 Of the Legality of a Railway Company. 
 
 71. No question can in general be raised about 
 the legality of a railway company, inasmuch as it 
 derives its existence from the act of the legislature. 
 But, supposing the act constituting a company to be 
 obtained by fraud or misrepresentation practised on 
 the legislature, the company, which is the mere 
 creature of the act, cannot, it is conceived, be taken 
 to have any legal authority or even existence, at 
 least as against those who are not parties to the 
 fraud or misrepresentation, (a) But the legality of 
 a railway company cannot, as we have already had 
 occasion to notice, be impugned, on the ground that 
 a great proportion of the subscriptions, on the faith 
 of which the act is suffered to pass, are made in trust 
 for the company, and upon a secret understanding 
 that the parties making them are not to be liable to 
 the responsibilities imposed by such act on the share- 
 holders in general, (b) 
 
 (a) See Cromford Railway Company v. Lacey, 3 Y. & Jer. 80. 
 (fe) See ante, p. 38 et seq.
 
 ( 68 ) 
 
 Paut II. 
 
 Of the Constitution of a Railway Company. 
 
 Sect. 1 . — Of the Constitution of the Company viewed generally. 
 2. — Of the Company viewed in its External Relations. 
 3. — Of the Company viewed in its Internal Relations. 
 4. — Of the Capital Stock of the Company. 
 
 Sect. 1. — General View of Constitution of Company. 
 
 72. Looking at the general features of acts of 
 this kind, in respect of which they will, upon exa- 
 mination, be found to bear a very close resemblance 
 to each other, (and further than this, our review 
 cannot, for very obvious reasons, be carried,) a rail- 
 way company may be defined to be a collection of 
 many individuals united into a body corporate for 
 the making and maintaining of a railway with all 
 necessary works, &c., and for the better prosecu- 
 tion of this design, endowed by the policy of the 
 law, not merely with a modified capacity of acting 
 in several respects as an individual, particularly of 
 taking and granting property, of contracting obli- 
 gations, of suing and being sued, of enjoying pri- 
 vileges and immunities according to the scope of its 
 institution, or the powers conferred upon it, either 
 at the time of its creation, or at any subsequent 
 period of its existence, (c) but likewise with extra- 
 ordinary powers, more peculiarly characteristic of 
 such an undertaking, viz. powers of taking and 
 dealing with land, houses, &c., of internal self- 
 government, and of raising, by the mutual subscrip- 
 
 (f) See Kydd, Intro. 13.
 
 Constitution of a Railway Company. 69 
 
 tion of its individual members, a certain amount of 
 capital, divided into a given number of transferable 
 shares. As a corporate body, a railway company 
 enjoys all the ordinary incidents of such a body, 
 (subject, of course, to such express provisions on 
 the subject as are contained in their act of incorpo- 
 ration, and to the limitations thereby engrafted on 
 the general law of corporations) ; viz. 1st, to have 
 perpetual succession; 2nd, to sue or be sued, grant 
 or receive &c,, by its corporate name; Srd, to 
 purchase lands, and hold them for the benefit of 
 itself and its successors ; 4th, to have a common 
 seal, for a corporation being an invisible body, cannot 
 manifest its intentions by any personal act or oral dis- 
 course, it therefore acts and speaks only by its com- 
 mon seal ; 5th, to make bye laws or private statutes 
 for the better government of the corporation, which 
 are binding on itself, unless contrary to the laws 
 of the land, and then they are void, (d) 
 
 In order however to develope fully the force of 
 the above definition, let us proceed to consider its 
 main branches somewhat more in detail. For this 
 purpose, a railway company may be regarded in 
 three principal points of view; in regard, 1st, of its 
 external relations ; 2ndly, of its internal relations ; 
 Srdly, of its capital stock. 
 
 (d) Bl. Com. vol. i. 475, 476.
 
 70 Company as constituted under the Act. 
 
 Sect. 2. — Of a Railway Company viewed in its 
 External Relations. 
 
 Sub-Sect. 1. — Of the Mode of Action prescribed by its Act to 
 
 the Company, 
 2. — Of the Powers, Capacities and Incapacities of the 
 
 Company. 
 3. — Of the Rights of the Company, incidental to such 
 
 Powers. 
 4. —Of the Duties of the Company. 
 5.— Of its Burthens. 
 6. — Of its Public Acts and Liabilities. 
 7. — Of Compensation. 
 
 Sub-Sect. 1. — Of the Mode of Action prescribed to 
 a Railway Company. 
 
 1. — Of the Organs through which it must act. 
 2. — Of the Forms to be observed by the Company in acting, viz. 
 in regard of Contracts, &c. 
 
 73. First, Of the proper organs through which a 
 railway company may act as such. These in general 
 are threefold: 1st, the general assembly of the com- 
 pany ; 2ndly, the board of directors ; Sdly, a duly 
 constituted agent, &c. 
 
 74. 1st, The resolution of a public assembly of 
 the company, in matters on which it is competent 
 for the assembly to resolve, operates as the act of 
 the company, and is accordingly binding on the entire 
 corporate body. 
 
 This, however, supposes that in all substantial 
 respects the resolution pursues the requisitions of 
 the act by which the company is constituted, as, for 
 instance, in respect of time, place, persons, &c. 
 If, therefore, the meeting, at which such resolution
 
 Constitution of a Railway Company. 71 
 
 is passed, is improperly convened; or if such meet- 
 ing consist not of a proper number of proprietors, 
 or of members not properly qualified ; or the votes 
 at such meeting are not taken according to the me- 
 thod prescribed by the act ; the resolution cannot 
 be taken to operate as the public act of the com- 
 pany in its politic capacity, (a) Prima facie, how- 
 ever, it must, it seems, be presumed, at any rate as 
 against the company, that the forms required by the 
 act have been complied with, and therefore it lies 
 upon it, where it seeks to avail itself of any default 
 in this respect, to give strict proof thereof, (b) Not 
 only must the resolution itself be duly taken, but 
 likewise where ulterior steps are necessary to give 
 it effect, those steps must either appear to be pre- 
 scribed by the resolution itself, or be shown to fall 
 within the scope and purview of the authority of 
 the parties to whom it is left to carry out the reso- 
 lution, (c) 
 
 75. 2d. The acts of the directors within the scope of 
 their authority are no less binding on the company 
 than the acts of a general assembly. As a general 
 rule, however, this supposes that a sufficient number 
 of directors to constitute a quorum concur in the 
 act, and that those so concurring are duly elected 
 and qualified. If these requisites are satisfied, the 
 fact of there being vacancies in the directory, which 
 have not been filled up pursuant to the authority 
 
 (a) Bill V. The Manchester and SalJ'ord Water IVofki Com' 
 pany, 5 B. & Ad. 874 ; Clarke v. Imperial Gas Light and Coke 
 Company, 4 B. & Ad. 324. 
 
 (fc) Clarke v. Imperial Gas Light and Coke Company, ubi 
 supra. 
 
 (c) See cases cited ia note (a) supra.
 
 72 Company as constituted under the Ad. 
 
 given for that purpose to the directory, would seem 
 to afford no ground for impugning (c?) the validity of 
 a transaction. And even supposing the directors 
 not to be duly elected or qualified, it may be ques- 
 tioned whether, if the shareholders choose to allow 
 parties to act in the capacity of directors, they have 
 a right to turn round and say that such parties are 
 not duly qualified, &c. (e). 
 
 76. 3rd, A railway corrtpany may act through the 
 medium of its officers, agents, or servants ; and the 
 acts of these parties, where they fall within the 
 scope of their authority, are as much the acts of the 
 company as if done under the express authority of 
 a general meeting. The authority for this purpose 
 must, however, in general, be given by a deed, and 
 under the common seal of the company. (/) 
 
 77. Secondly, Of the forms to be observed by the 
 company in acting; and herein, 1st, of the name, 
 2ndly, of the common seal. 
 
 78. And 1st, Of the name of the company. In 
 incorporating a railway company, the legislature 
 invariably bestows on it a name, by which it may be 
 known and distinguished. Such name is the very 
 being of its politic capacity, the knot of its combi- 
 nation, without which it cannot perform its corporate 
 
 ((f) See Thames Haven Dock and Railwaii Company v. Rose, 
 4 M. & Gr. .552 ; S. C. 21 Law Journ. C. P. 90. 
 
 (e) Thames Haven Dock and liailway Company \. Hall, 5 M, 
 & Gr. 287, judgment of Tlndal, C. J. As to provisions of Com- 
 panies' Clauses Consolidation Act on this point, see Act, s. 99, 
 post, App. 
 
 (f) See Yarborough v. The Bank of England, 16 East, 6 ; 
 Smith V. The Birmingham Gas Company, 1 A. & E. 528, and 
 cases there cited ; Thames Haven Dock and Railway Company v- 
 Hall, ubi supra.
 
 Mode of Action of Railway Company. 73 
 
 functions, {g) It is in this name consequently that 
 it must take and grant, sue and be sued, and gene- 
 rally do all corporate acts. (Ji) 
 
 79. 2dly, Of the common seal of the company. 
 It is one of the incidents of a railway company as a 
 corporate body to have a common seal, which consti- 
 tutes as it were its mouthpiece and organ, and by 
 which alone consequently the company as such can 
 in general act or speak. This rule does not apply 
 to a resolution of the company, which is not intended 
 of itself to be operative, but only to serve as the 
 groundwork of some ulterior act on the part of the 
 company ; but is enough in such a case if the latter 
 only is under seal. (?) 
 
 The above rule must moreover be understood as 
 subject not only to certain established exceptions 
 which have gradually engrafted themselves on the 
 general law of corporations, and which would seem 
 to apply as well to the case of a railway company as 
 of any other species of corporate body, but likewise 
 to such as are usually made by the company's act 
 of incorporation. To these exceptions, however, 
 we shall have occasion hereafter more particularly 
 to advert. 
 
 Although a railway company cannot in general 
 perform any corporate function, except by the in- 
 strumentality of its common seal, still the concur- 
 
 {g) Gilb. Hist. C. P. 225. 
 
 (h) See B.eg. on the prosecution of the Mayor, ^c. of Maiden- 
 head V. Great Western Railway Company, 8 Jur. 107 ; S. C. I 
 D. & L. P. C. 874 ; 5 A. & £. N. S. 597 ; Reg. v. West, 1 A. 
 & E. N. S. 826 -,8.0.2 R, Cas. 613. 
 
 (i) Clarke v. Imperial Gas Light and Coke Company, 4 B. 6c 
 Ad. 315.
 
 74 Company as constituted under the Act. 
 
 rence of the company need not be shown in each 
 particular act of seahng ; but it is enough if the seal 
 be proved to be applied by the parties having the 
 legal custody of it, that is, under the general provi- 
 sions of a railway act, the directors. (_;') 
 
 Sub-Sect. 2. — Of the Powers, Capacities, and 
 Incapacities of a Railway Company. 
 
 1. — Of the general Nature and Extent of the Powers of the 
 
 Company. 
 2. — Of their Suspension, Cesser, or Determination. 
 3.~0f their Revival. 
 
 80. I. Of the nature and extent of the powers of a 
 railway company. — Considered in regard of their 
 nature and extent, the powers of a railway company 
 may be classed under two heads, 1st, principal 
 powers, and 2ndly, accessory or incidental powers, 
 which are only given for the sake of the former. 
 
 81. Rules of Construction. Before descend- 
 ing to a more exact investigation of either class of 
 powers, it may be proper to say a few words of the 
 rules of construction, applicable to the interpreta- 
 tion of the powers of a railway company generally. 
 Railway acts then, as we have already had occasion 
 to remark, are to be regarded as parliamentary con- 
 tracts, made by the legislature on behalf of all the 
 persons interested in the performance of any thing 
 to be done under them, {k) It follows, that the rail- 
 
 (j) See Hill v. Manchester and Salford Water Works Com- 
 jmny, 5 B. & Ad. 866. 
 
 (h) Blakemore v. Glamorganshire Canal Company, 1 My. & 
 K. 154.
 
 Powers of a Railway Company. 75 
 
 way companies constituted by those acts are to be 
 kept strictly within the limit of the powers for which 
 they have bargained with the legislature. Every 
 owner of land or other property, whose interests are 
 to be affected by the exercise of such powers, has a 
 right to require that they shall be rigidly and strictly 
 carried into effect as regards the subject-matter, the 
 time, and the mode of their execution. He has a 
 right to insist that only that precise portion of his 
 property shall be dealt with by the company that is 
 specified in the act, and that too for the purposes 
 and in the manner authorized by the act, and in case 
 of a company going beyond their powers in any of 
 these respects, he may apply to a Court of Equity 
 to restrain them by injunction. (Z) 
 
 82. Principal Powers. After this brief notice 
 of the general rules of construction applicable to the 
 class of powers in question, we may now proceed to 
 advert more particularly to their nature and distinc- 
 tive peculiarities. 
 
 First, then, of what we have above termed Prin- 
 cipal Powers. The fundamental powers usually 
 given by the legislature to a railway company, are 
 those of making and maintaining a railway or rail- 
 ways, (as the case may be), with all proper works 
 and conveniences in the course and over the lands 
 prescribed by the act of parliament. The above 
 line of railway in general is not to exceed a given 
 breadth, unless where a greater breadth is required 
 for cuttings or embankments. The company, how- 
 ever, are not to be precluded from carrying out the 
 
 (/) Lee V. Milner, 2 Y. & Coll. 618, judgment of Alderson, B. 
 E 2
 
 76 Company as constituted under the Act. 
 
 railway in the parliamentary line by reason of any 
 unintentional error or omission in the description 
 of the property given in the schedule, but may 
 apply to two justices to certify to such error or 
 omission arising from mistake, (m) The effect of 
 the certificate, when granted, is to rectify the mis- 
 take or omission in the schedule to the act itself, 
 and to extend the operation of the statute to the 
 several lands, &c. included in the certificate, so as 
 to place them precisely in the same situation as if 
 they had been inserted in the original schedule of 
 the act. (n) Where the justices certify for a house, 
 a yard and garden may pass under that description, 
 where such yard and garden are in point of fact 
 parcel of and included in the description of the 
 house, and occupied therewith as such parcel, (n) 
 Though the jurisdiction to certify is given to the 
 justices in case of a dispute, as to any mistake or 
 omission, &c., a certificate, granted in pursuance of 
 the above power, is not bad for omitting to aver ex- 
 pressly the existence of such dispute, the certificate 
 itself, and the fact of the application for it, showing 
 a dispute, and being therefore in themselves evidence 
 of the jurisdiction, (w) 
 
 83. As the above power is only to make, &"c. a 
 railway in a particular line, it cannot of course be 
 taken to authorize any departure from that line. 
 It would not therefore per se justify the attempting 
 a deviation from the line prescribed by parliament. 
 
 (to) As to analogous provision of Railways Clauses Consoli- 
 dation Act (8 Vict. c. 20), see act, s. 7, post, App. 
 
 (n) Taylor v. Ckmson, 2 A. & E. N. S. 978 ; S.C. Z Rail- 
 way Cas. 65.
 
 Powers of a Railway Company. 77 
 
 And not only the party whose property is imme- 
 diately affected by the deviation may make it the 
 ground of complaint, but even a distant landowner, 
 where the latter is really and substantially pre- 
 judiced thereby, (o) 
 
 But where a railway act, after prescribing the 
 general line of the railway, laid the company under 
 a still further restriction as to a part of the line, 
 viz. by requiring that it should pass between two 
 streets, A. and C, at a given distance off one or 
 other, or in case they came within that distance of 
 either or both streets, they were to purchase the 
 space less than such distance, and half of either or 
 both streets, as the case might be, and the company 
 adopted the latter alternative, and purchased street 
 A., which lay in the parliamentary line, and made 
 the railway over it, but in that line, this was held to 
 be no deviation, (p) 
 
 84. To obviate the inconveniences that might 
 arise from the rigid construction thus put upon the 
 powers of a railway company, the act generally 
 contains a power for the company to deviate from 
 their original line within certain limits, (q) These 
 limits are usually twofold, viz. 1st, the new line is 
 limited to go only a certain distance off the original 
 one ; and 2nd, the deviation is not to extend into 
 lands not mentioned in the book of reference. 
 
 (o) Lee V. Milner, ubi supra, judgment of Alderson, B. 
 
 (p) Taylor v. Clemson, ubi supra. 
 
 (g) As to the limit of the deviation permitted to railway 
 companies, under the Railways Clauses Consolidation Act (8 
 Vict. 0.20), from the levels, gradients, curves, &c. described 
 in the plan or section, see act, ss. 11, 12, 14, post. Appendix. 
 As to lateral deviations, see ib. s. 15.
 
 78 Company as constituted under the Act. 
 
 With regard to the former of the two restrictions, 
 the deviation that it permits must, it seems, be mea- 
 sured by the distance between the two points con- 
 stituting the media fila of the parliamentary and 
 substituted lines. So long accordingly as this dis- 
 tance does not exceed the space prescribed by the 
 act for the deviation, measuring horizontally, the 
 company are within the limits of their power, (r) 
 
 The above restrictions, it would seem, must be 
 taken to apply in their full strictness only to the 
 substituted line itself, the company for the construc- 
 tion of their new line having all the accompaniments 
 of the old, just as much as if the former had been 
 the line originally inserted in the parliamentary plan, 
 such as the power of making cuttings, embank- 
 ments and the like ; such cuttings and embankments 
 accordingly may not only extend to a greater dis- 
 tance off the original line than that prescribed by 
 the act for the deviated line itself, but may, it seems, 
 with the consent of the owners, be even carried into 
 lands not mentioned in the parliamentary plan, (r) 
 
 85. Sometimes a further power is given by the 
 legislature to the owners of particular descriptions 
 of property within a given distance of the rail- 
 way, (5) viz. of makinor branch railways to communi- 
 cate with the principal. In investigating the effect 
 of such a power, several points present themselves 
 for consideration, 1st, what persons are within the 
 benefit of the provision ; 2nd, what species of rail- 
 
 ()•) Dne d. Payne v. The Bristol and Exeter Railwai/ Com- 
 pany, 2 R. Cas. 97 ; S. C. 6 M. & W. 320. 
 
 (s) As to the question from what terminus the distance is to 
 be measured, see Sirhowy Tramroad Company v. Jones, 3 A.iSc E. 
 640, n.(a).
 
 Powers of a Railway Company. 79 
 
 way it authorizes. 1st, The persons of wliom the 
 act in general speaks, are the proprietors and occu- 
 piers of certain particular descriptions of property 
 in the neighbourhood of the main railway. As the 
 provision is obviously intended for the benefit and 
 convenience of those who may be proprietors, and 
 from time to time proprietors of such property, it 
 cannot, it seems, be confined simply to such persons 
 as fill that character at the time of the passing of 
 the act, or the making of the main railway, but em- 
 braces all who subsequently succeed in their (i) 
 place. 2nd, As to the species of railways the above 
 power authorizes. Where the act speaks in general 
 terms of any railways or roads, those terms cannot 
 be qualified or cut down by showing that only a 
 particular description of railway was in use at the 
 passing of the act, so as to confine parties to that 
 description exclusively of all others, {u) 
 
 86. Where the power is given in the first instance 
 to the company, and in their default to adjoining 
 owners, occupiers, &c., but the amount of tolls is 
 limited in either case to a certain rate, unless where 
 persons, in order to induce the company to under- 
 take the work, choose to agree with them for a 
 higher rate, which they are permitted within certain 
 limits to do, it is a fraud at once upon the company 
 and the legislature for neighbouring owners of pro- 
 perty to agree together to construct a railway under 
 the statutory power thus given, and when made, to 
 use it for certain specific purposes connected with 
 
 it) Bishop V. North, 21 Law Journ. Exch. 362 ; 5. C. 11 M. 
 & W. 418. See also Monkland and Kirkintilloch Hallway Com' 
 pany v. Dixon, 3 R. Cas. 292. 
 
 (m) Bishop V. North, ubi supra.
 
 so Company as constituted under the Act. 
 
 their property, paying a higher rate of toll than that 
 prescribed by the act." (a) The covenant accord- 
 ingly securing the higher rate of toll ought not to 
 be specifically enforced by injunction ; {x) and even 
 independently of any question of fraud, such a co- 
 venant is not, it seems, binding on the assigns of 
 any original covenantor, as it is not a covenant that 
 runs with the land : and this even though the cove- 
 nant makes express mention of " assigns." (x) 
 
 87. Where the above power extends generally to 
 the carrying branch railways across or along any road 
 within the given limits, semble this must be under- 
 stood, not as conferring on the grantee an absolute 
 authority to deal with such roads as he may please, 
 or as may best suit his own convenience, but as 
 subject to the limitation, that where a branch rail- 
 way is laid down upon another road, sufficient space 
 shall be left independently of it for the public to 
 pass, {y) 
 
 Or if the power given to the company to make 
 the principal line be subject to certain restrictions 
 in the case of roads, the power in question may be 
 considered with reference to those restrictions, and 
 as qualified by them, so as to make it incumbent on 
 a party wishing to take any part of a public road 
 for the use of his branch railway to comply with 
 such restrictions, (z) 
 
 88. Accordingly, where in pursuance of the sup- 
 posed power, a party lays down a branch railway 
 upon a public road in such a manner as to obstruct^ 
 hinder and inconvenience the public, and this with- 
 out complying with the restrictions imposed on the 
 
 (i) Keppell V. Bailey, 2 My. & K. 517. 
 
 (y) Judgment of Parke, J. in Rex v. Morris, 1 B. & Ad. 441. 
 
 (s) Rex V. Morris, ubi supra.
 
 Powers of a Railway Company. 81 
 
 company, supposing any such to exist, such branch 
 railway is a public nuisance, and indictable as such. 
 And the party cannot justify the obstruction in such 
 a case on the ground of the facility given by the 
 railway to the traffic of the neighbourhood, the use 
 of it being permitted to the public on paying a toll; 
 because no man has a right to tell the public that 
 they shall discontinue the use of such carriages as 
 they have been accustomed to employ, and adopt 
 another kind, in order to pass along a new descrip- 
 tion of road, paying him for so doing, (a) 
 
 But if the party can show a compliance on his 
 part with the conditions imposed by the act on the 
 powers of the company, semble that may operate as 
 a justification of the supposed nuisance; as, for 
 instance (where what is required of the company 
 before interfering with any existing road is to make 
 a new one in lieu of the old), that he did, before 
 doing any thing to the obstruction of the old road, 
 give to the public a new one as convenient as the 
 old. (6) 
 
 89. Supposing the original formation of any such 
 branch line of railway to be authorized by an act, it 
 would seem highly questionable, whether, after the 
 determination of the powers under which such railway 
 is constructed, either it may be by the repeal of the 
 act, or by its expiration it being originally only 
 temporary, the right of keeping up such railway 
 continues any longer, (c) 
 
 90. 2dly, Of SUBSIDIARY or incidental Powers, 
 and herein, 1st, of the general powers of contracting, 
 incidental to a railway company. These powers 
 
 (a) Rex V. Morris, 1 B. & Ad. 441. 
 
 (b) Ibid. (e) Ibid. 
 
 £ 5
 
 82 Company as constituted under the Act. 
 
 then cannot, it is conceived, be taken to be absolute 
 and unlimited, like those of a private individual, but 
 must be restricted to the objects of the company's 
 incorporation. A railway company, therefore (in 
 the absence of any express provision of their act of 
 incorporation), cannot in general make bills and 
 notes, {d) or grant annuities, or raise money by way 
 of loan, &c., the nature of the objects for which 
 they are incorporated not requiring that they should 
 possess this power, (e) 
 
 91. 2dly, Of the powers of purchasing and taking 
 land, and erecting works, ^c. Powers of this class 
 are divisible into two heads, according as they are 
 exercisable or not against the consent of the parties 
 whose interests they are calculated to affect. 
 
 92. 1st, then, of the latter class, or of what may 
 perhaps be termed the enabling powers, (/) inasmuch 
 
 (d) The issuing of loan notes, &c. by railway companies is 
 now prohibited under a penalty, by the 7 &; 8 Vict. c. 85, s. 19, 
 though those issued before the passing of that act may be re- 
 newed for any period or periods not exceeding five years from 
 the passing of the act. Loan notes, &c. issued or contracted to 
 be issued before July the 12th, 1844, are to be paid when due, 
 subject as before provided in the act (see same act, s. 20^, and 
 are to be registered. lb. s. 21. See act given in the Appendix. 
 
 (e) Broughlon v. The Majichester Water Works Company, 3 
 B. & Aid. 1 ; judgment of Denman, C. J. in Clarke v. The Im- 
 perial Gas Light and Coke Company, 4B. & Ad. 315. See case 
 considered, post. Chap, VI. where railway company were in the 
 habit of forwarding passengers by the railway to places beyond 
 their terminus by steam boat. 
 
 (/) As to provisions of Lands Clauses Consolidation Act, 
 relative to purchase of lands by agreement generally, see act, 
 s. 6 — 11, post, App. ; and as to power to purchase lands for 
 additional accommodation, see same act, s. 12 — 14; also as to 
 power to purchase lands for additional stations, &c., see Railway
 
 Powers of a Railway Company. 83 
 
 as they are confined to the enabling the company to 
 bargain for the necessary lands, way leaves, &c. and 
 to the enlarging the powers of those who may be 
 willing to deal with them ; as, for instance, by au- 
 thorizing tenants for life only to convey the fee 
 simple, and the like. In the character of this class 
 of powers, there is but little matter for investigation ; 
 as in general they go no further than to enable the 
 company to purchase land for the benefit of the un- 
 dertaking generally, or for additional stations, &c. 
 in particular ; they cannot, of course, be taken to 
 authorize a bargain for land, which is not wanted 
 for the purpose of the railway, but there must be an 
 express authority given by parliament for the pur- 
 pose. ((/) 
 
 93. Next, of the former class of powers, or of 
 what may be termed compulsory powers. Before 
 however adverting to this immediate head of in- 
 quiry, there is a preliminary question that obviously 
 requires to be considered, viz. whether a railway 
 company in any given case possesses compulsory 
 powers of taking land, &c., or not ; for, although in 
 general, powers of purchasing land, &c. are made 
 exercisable without, or even against, the will of the 
 parties interested, still they are not invariably so ; 
 as the projectors may think that they shall be able 
 to obtain, by way of treaty, all that they require for 
 the purposes of their railway, and so may be content 
 
 Clauses Consolidation Act, s. 45, post, App. In cases of parties 
 under disability, &c. the Lands Clauses Consolidation Act, s. 9, 
 requires that the amount of compensation be ascertained by va- 
 luation, and paid into the bank. 
 
 (rf) See judgment of Lord Abinger, C. B., in Penvey v. 
 Great Western Boilirav Comrmnv, 1 H. Sc Hurl. •217.
 
 84 Company as constituted under the Act. 
 
 to confine their request to the legislature simply to 
 the granting them powers of purchasing land, &c., 
 and at the same time enlarging the powers of those 
 who may be willing to deal with them. This ques- 
 tion must of course depend on the particular pro- 
 visions of the company's act of incorporation, (e) 
 In looking at an act, with a view to ascertain this 
 point, it must, it may be remarked, be borne in mind 
 that, as compulsory powers of taking land, &c., are 
 calculated to operate in a manner highly derogatory 
 to private property, they must receive a strict con- 
 struction, and cannot consequently be claimed by the 
 company, where it is not the clear intention of the 
 legislature to confer them. 
 
 94. A railway act empowered the company to 
 make, &c., a railway over certain lands to a given 
 terminus ; but nothing contained in the statute was 
 to authorize the company's entering upon, taking, 
 or damaging any lands without the consent of the 
 owner, &c. In case of the company's railway cross- 
 ing any other railway, the communication between 
 them, if the company and the owners of the latter 
 railway did not agree about the same, was to be 
 made in such manner as should be directed by two 
 engineers, &c., the company to compensate the 
 owners of the other railway, &c., and to have the 
 liberty of crossing such railway by means of such 
 
 (e) As to when one railway company entitled to make a 
 bridge across the line of another company without the consent 
 of the proprietors of the latter, but not to take the land of the 
 latter for the purpose of such bridge, without their consent, see 
 Clarence Railway Company v. Great North of England, Clarence 
 and Hartlepool Junction Railway Company, 23 Law Journ. 
 Exch. 137 ; 5. C. 13 M. & W. 706.
 
 Powers of a Railway Company. 85 
 
 communication at all times without payment of toll. 
 It was held that the latter provision did not clearly 
 give a compulsory power in the case where a rail- 
 way was to.be crossed, and consequently that the 
 former, requiring the consent of the owners before 
 entering upon, &c. any lands, must be taken to 
 govern the latter, and made the consent of the 
 owners necessary, in order to the company's crossing 
 a railway, {f) 
 
 95. To return to the question before proposed for 
 consideration, viz. the nature and extent of the com- 
 pulsory powers of a company, (g) A railway act 
 usually empowers the company, not only to enter 
 upon and appropriate, &c., the lands which they are 
 authorized to use, &c. but also to take a temporary 
 possession (h) of adjoining lands, (i) and dig therein 
 for materials, so far as may be proper or necessary 
 for the making, &c. of the railway and other works 
 authorized by the act, and also to construct, &c. 
 across, under, or over roads, railroads, tramroads, 
 rivers, streams, canals, brooks, &c., all such tunnels, 
 
 (/') Clarence Railway Company v. Great North of England, 
 Clarence arid Hartlepool Junction Railway Company, 4 A. & E. 
 N. S. 46 ; S. C. 21 Law Journ, Q. B. 146. 
 
 (g) As to analogous provisions of Railway Clause? Consoli- 
 dation Act, see act, s. 16. 
 
 (/i) As to what not a temporary taking possession of adjoining 
 land'^, see Innocent v. North Midland Railway Company, 1 
 Railway Cas. 242. 
 
 (i) As to provisions of Railway Clauses Consolidation Act, 
 on the subject of the temporary use of lands, see act, ss. 30 
 — 44. Also as to power of entry upon lands for purpose of sur- 
 veying, &c., giving not less than three nor more than fourteen 
 days' notice, see Lands Clauses Consolidation Act, 8 Vict. c. 18, 
 s. 84, post, App.
 
 86 Company as constituted under the Act. 
 
 embankments, aqueducts, bridges, &c., as tbey may 
 think proper ; and to alter the course of any brooks, 
 rivers, canals, &-c., as may be necessary for con- 
 structing such tunnels, bridges, &c., over or under 
 the same, and also to alter the course of, or divert, 
 or raise, or sink, any rivers, streams of water, roads, 
 or ways, in order the more conveniently to carry the 
 same over, under, or by the side of the intended line 
 of railway ; and also upon the railway, &c. to erect 
 and construct all such houses, wharfs, warehouses, 
 &c., as they may think proper ; and also from time 
 to time to alter, &c. the before-mentioned works, 
 and to substitute others in their stead, and to do 
 and execute all other matters and things necessary 
 or convenient for making, maintaining, &;c. the rail- 
 way and other works authorized by the act. 
 
 96. The above powers, so far as they regard the 
 dealing with lands, (k) embrace two classes of lands, 
 1st, those that the company are empowered to take 
 for the purposes of their act ; and 2nd, adjoining 
 lands, which the company are enabled temporarily 
 to occupy, or to dig therein for the necessary mate- 
 rials. The company cannot, it should seem, by vir- 
 tue of the above powers, take land for the purpose 
 of employing the soil in forming an embankment on 
 a different part of the line. (/) Notwithstanding, 
 however, that the company attempt to gain posses- 
 sion of land, in the first instance, for a purpose such 
 
 (k) With resf)ect to powers of entry upon adjoining lands, to 
 repair accidents, iic, and the revival of the company's powers of 
 taking land, in order to make slopes, inc., see post, cap. 6, and 
 
 5 & 6 Vict. c. 55, sects. 14 and 15, Appendix. 
 
 (l) Webb V. Manchester and Leeds Railway Company, 4 M. 
 
 6 Cr. 116 ; 5. C. 1 Railway Cas. 600.
 
 Powers of a Railway Company. 87 
 
 as that just suggested, which is not sanctioned by 
 their act, yet if the land, by reason of subsequent 
 events, become really necessary or desirable for any 
 bonS. fide purpose of the act, such, for instance, as 
 the increasing the slope in a part of the line where 
 there has been a slip, a court of equity will not in- 
 terfere to prevent its being taken. {I) 
 
 97. The power of dealing with roads, 8fc. (m) is, 
 as we have seen, not an absolute uncontrolled power, 
 but only given, as a railway act usually expresses 
 it, in order to enable the company more conveni- 
 ently to carry the same over, under, or by the side 
 of the railway. The word " conveniently " here must 
 it seems be taken to mean " more conveniently upon 
 the whole for carrying into effect the purposes of 
 the act." The company accordingly are hereby in- 
 vested with a discretionary power of altering, divert- 
 ing, &c. roads in such a manner as an experienced 
 and skilful engineer would judge expedient, having 
 regard to the interests both of the company and the 
 public ; for the work must be done, if possible, 
 without any inconvenience to the public ; or, if this 
 cannot be, then with the least possible. A railway 
 company, in carrying a road under the railway, built 
 a skew bridge, and diverted the road to an angle of 
 45 deg. instead of 34 deg., which was the angle made 
 at that particular point by the old road. The bridge 
 might have been made at an angle of 34 deg., and 
 the public gained no additional convenience by its 
 
 (/) Webb V. Manchester and Leeds Railway Company, 4 M. 
 & Cr. 116 ; 5. C. 1 Railway Cas. 600. 
 
 (m) As to what extent of interference with roads, authorized 
 by power of making branch railways, see ante, pp. 80, 81, and 
 Rex V. Morris, ] B. & Ad. 441.
 
 88 Company as constituted under the Act. 
 
 being made otherwise ; but it appeared that no real 
 inconvenience was sustained by passengers in con- 
 sequence of the diversion, and that the bridge was 
 properly constructed with regard to the interests of 
 the company and the public. It was held that, 
 under the circumstances, the bridge must be deemed 
 to be built in conformity with the intention of the 
 act, and was not indictable as a nuisance, {n) 
 
 98. So likewise, the effect of the usual powers 
 given by a railway act for the construction of the 
 necessary rvorks, ^-c, is to invest tiie company with 
 a discretion (not arbitrary, but to be exercised rea- 
 sonably and bond fide), of doing such works, and in 
 such a manner as a reasonable, careful and skilful 
 man would judge expedient and fit ; they may 
 therefore temporarily bridge over a stream or canal, 
 where it can be shown to be a reasonably convenient 
 measure for the due execution of the works con- 
 templated by the act, and provided that in so doing 
 they do not offend against any of the restrictions of 
 the act. (o) 
 
 So likewise a company may arch over a public 
 street or highway, for the purpose of erecting on 
 the top certain buildings contemplated by their act, 
 where this is a reasonably convenient course for the 
 
 (n) Reg, V. Sharpe, 3 Railway Cas. 33, n. (a). 
 
 (o) Priestly v. The Manchester and Leeds Railway Company, 
 2 Railway Cas. 134 ; S, C. 4 Y. & Coll. 63 ; The London and 
 Birm. Railway Company v. The Grand Junction Canal Company, 
 1 Railway Cas. 238. But a company are not justified, even for 
 a temporary purpose connected with their works, in making a 
 bridge over a road not in compliance with the restrictions of their 
 act; Att. Gen. v. Eastern Counties Railway Company, 3 Rail- 
 way Cas. 337 ; S. C. 7 Jur. 806.
 
 Powers .of a Railway Company. 89 
 
 purpose in question, (p) And where a company are 
 empowered to throw a bridge over another railway, 
 they may, if it is reasonably necessary for the con- 
 struction of the bridge, place their temporary scaf- 
 folding, &c. on the land of the proprietors of the 
 latter line, {q) 
 
 99. In according to a railway company the com- 
 pulsory powers above considered, the legislature is 
 careful to accompany them with certain provisions in 
 favour of the parties whose interests the exercise of such 
 powers is calculated to affect. Of these provisions 
 some are of general application to every description 
 of those interests. Such are the provisions that the 
 company, their workmen, &c., in the execution of 
 the above powers, shall do as little damage as may 
 be ; and again, that the company shall make full 
 satisfaction to the interested parties for all damages 
 sustained in the execution of such powers. Other 
 provisions are of a more limited kind, and intended 
 to protect particular descriptions of interests, or to 
 guard against peculiar mischiefs, likely to result from 
 the execution of a great public work, such as a long 
 and extended line of railway, and for which a mere 
 pecuniary compensation is inadequate fully to pro- 
 vide. In treating accordingly of the above provi- 
 sions, it is proposed to consider them under two 
 heads : 1st, the general; 2nd, the specific. 
 
 (p) Att. Gen. v. Eastern Counties and North Eastern Couiities 
 Railway Companies, 2 Railway Cas. 823 ; S. C. 10 M. & W. 
 263. 
 
 (9) Clarence Railway Company v. Great North of England, 
 S^c. Railway Company, 23 L. J. Exch. 137 ; S.C. 13 M. & W. 
 706 ; Great North of England, &c. Railivuy Company v. Clarence 
 Railway Company, 1 Coll. 507.
 
 90 Company as constituted under the Act. 
 
 100. 1 St, then, of the general provisions^ and herein, 
 1st, of the former of the two general provisions, 
 which prescribes that the company, in the execution 
 of their powers, are to do as little damage as may be. 
 The object of this provision is not to tie up the com- 
 pany from doing what is necessary to the carrying out 
 of their works according to the parliamentary plan, 
 but to render it obligatory on them in so doing to 
 do as little damage as is consistent therewith. Ac- 
 cordingly, if they attempt to carry on their works in 
 such a way as to cause more damage than the neces- 
 sity of the case requires, a court of equity will in- 
 terfere to restrain them, (r) Where therefore a line 
 is carrying on on a given level, it is not allowable for 
 the company suddenly to part with such level, and 
 come down on to a stream of water, and to destroy 
 the interest therein, without some cogent reasons for 
 so doing, (r) 
 
 So likewise, where a railway company were pro- 
 ceeding to erect an arch over a mill race, for the 
 purpose of sustaining an embankment, on which the 
 railway was to be constructed, and it appeared that 
 if the arch were of the dimensions proposed by the 
 railway company, injury would be done to the mill, 
 but that such injury would be avoided, if the arch 
 were of larger dimensions, an injunction was granted 
 to restrain the company from making over the mill 
 race an arch of less than certain dimensions. (*) So 
 likewise, in dealing with any road that lies in the 
 way of their railway, the company are bound to 
 
 (r) Judgment of Lord Chancellor in Manser v. The Korlh 
 Eastern Counties Railway Company, 2 Railway Cas. 391. 
 
 (s) Coats V, Clarence Railway Company, 1 Russ. & My. 
 181.
 
 Powers of a Railway Company. 91 
 
 consult as far as possible both public and private 
 convenience, (f) 
 
 101. The second general restriction ordinarily im- 
 posed on a railway company, is that of making 
 compensation to the interested parties for all land, 
 &c. taken, and damages, &c. caused in the execu- 
 tion of the powers of the act. The inquiry into the 
 nature and effect of such restriction involves such 
 a variety of points, as to require to be made the 
 subject of a separate section. 
 
 102. Having noticed the general restrictions usu- 
 ally imposed on the powers of a railway company, 
 it remains for us in the next place to consider some 
 of a more specijie character, which are intended to 
 protect particular descriptions of interests, or to guard 
 against particular mischiefs, incident to an under- 
 taking of so peculiar a character as a railway. The 
 more immediate objects contemplated by this latter 
 class of provisions, are either to regulate the degree 
 and nature of the interference which is to be per- 
 mitted to the company with the protected interests, 
 or else to afford some more specific remedy against 
 the evils of the company's interference than a mere 
 money compensation. As the nature and effect of 
 any restriction of the above kind necessarily varies 
 with the quality of the interest it is designed to pro- 
 tect, it may be proper, in treating of such restrictions, 
 to adopt this quality as the principle of classification, 
 and accordingly to consider the restrictions in ques- 
 tion as they are intended to operate for the protec- 
 tion, 1st, of aquatic rights, and generally of the 
 
 ({) Reg. V, Manchester and Leeds Railway Company, 3 A. & 
 E. N. S. 528, judgment of Tindal, C. J.
 
 92 Company as constituted under the Act. 
 
 public avenues of water communication ; 2dly, of 
 roads, highways, and generally of thoroughfares by 
 land; 3dly, of dwelling houses, gardens, &c. ; 4thly, 
 of mines and minerals ; and lastly, as they are meant 
 to provide for the accommodation of adjoining lands, 
 and in particular to secure the due means of com- 
 munication across the railway, 
 
 103. 1st then, of the restrictions imposed on the 
 powers of the company for the protection of aquatic 
 rights. Where a railway is intended to cross a 
 navigable river, canal, or other like thoroughfare 
 of public importance, the act usually determines 
 the nature and extent of the interference which it 
 proposes to allow, on the part of the company, with 
 the rights of the parties interested in the water. 
 Accordingly, it not only specifies and ascertains the 
 exact method in which the crossing is to be effected, 
 viz. by a bridge of given character and dimensions, 
 but likewise, to render the protection still more 
 complete, prohibits either absolutely, or except to a 
 certain extent and within certain limits, any diver- 
 sion of the water, or damaging or obstruction of the 
 navigation. 
 
 104. Next, as to the effect of the above restrictions. 
 If the company venture to interfere with any such 
 river, canal, &c. in a manner that militates against 
 the above restrictions, they are liable to be re- 
 strained by a Court of Equity; but subject to that, 
 and so far as there are no restrictions, the powers 
 given to the compony by their act are to be reason- 
 ably and liberally carried into effect. A company 
 were empowered by act of parliament to cross canals, 
 make embankments, &c., and generally to do all 
 works necessary or convenient for the construction
 
 Powers of a Railway Company. 93 
 
 of their line of railway ; subsequent clauses of the 
 act, however, restricted them from doing any thing 
 which should obstruct the navigation of a particular 
 canal, and prescribed the manner in which the rail- 
 way was to cross the canal, viz. by a bridge of given 
 height and dimensions. It was held that the rail- 
 way company had a right to make a temporary 
 bridge over the canal for the purpose of transport- 
 ing earth across from the higher land on one side of 
 the canal to the lower on the other, to form an em- 
 bankment in the line, provided that in so doing they 
 did not obstruct the navigation, (m) 
 
 105. Where the act, instead of prohibiting all ob- 
 struction, limits it to such as is of a certain extent 
 and character, the company impliedly have the right 
 of obstructing the navigation, provided they comply 
 with those requisites. Where therefore a railway 
 act conferred on a company all the usual powers of 
 doing works, crossing streams, &c., but required 
 them in crossing a particular navigation to make 
 bridges of given dimensions, and also, during the 
 progress of constructing those bridges, to leave a 
 certain extent of water-way, and further prohibited 
 the making any other bridges, or doing any thing to 
 the damage or obstruction of the navigation except 
 as before provided : it was held that the company 
 might erect a temporary bridge across the naviga- 
 tion for the purposes of a permanent bridge which 
 they were authorized to make, provided the tem- 
 porary bridge were so constructed, as to leave an 
 uninterrupted water-way of the required extent ; 
 
 (tt) London and Birmingham Railway Company v. Grand 
 Junction Canal Company, 1 R, Cas. 224.
 
 94 Company as constituted under the Act. 
 
 and that being bond fide erected for the purpose in 
 question, and in compliance with the prescribed 
 requisites, the company might use it for a further 
 purpose, viz. the transporting materials from the 
 company's works on one side of the navigation to 
 construct an embankment on the other, if such fur- 
 ther use of the bridge in question did not render 
 it more inconvenient to the canal company than if 
 used for the one legitimate purpose only. If the 
 bridge in question were not bona fide erected for 
 both purposes, but ostensibly only for the legitimate 
 purpose and substantially and really for the pro- 
 hibited, that of course would make a difference; but 
 such an intention in the company could not, it was 
 held, be inferred from the company having attempted 
 to introduce into an agreement between themselves 
 and the undertakers of the navigation, touching a 
 variation in the line of railway, a clause enabling 
 them (the railway company) to erect temporary 
 bridges across the navigation, which clause was sub- 
 sequently struck out by the undertakers, (x) 
 
 106. Provisions of such a nature can, it seems, 
 only be insisted on by the parties whose interests they 
 are intended directly to j)rotect; and, therefore, as re- 
 gards other than the protected interests, if any such 
 there chance to be, the general powers of the act 
 still remain applicable. Where, therefore, parties 
 were owners of a fulling mill on the banks of the 
 Calder, which was supplied with water from that 
 river, and were also interested in the preserving 
 open the navigation of the river for the general 
 
 (x) Priestly v. Manchester and Leeds Railway Company, 2 R. 
 Cas. 134 ; S. C. 4 You. 6c C. 63.
 
 Powers of a Railway Company. 95 
 
 purposes of their business, but not otherwise; the 
 Court of Chancery would seem to have inclined to 
 the opinion that they could not sustain a suit to 
 enforce the provisions of a railway act protecting 
 the Calder navigation from injury by the railway 
 works, but that the railway company were entitled 
 to deal with the parties' interest in the waters un- 
 der the general powers of their acts, those powers 
 being very extensive, and clearly embracing the case 
 in question, and the qualification as to the Calder 
 navigation relating simply to the navigation, and not 
 to the interests which the plaintiffs or others might 
 have in the waters for other purposes, and there 
 being no proof of any intention on the part of the 
 railway company to evade the provisions in favour 
 of the proprietors of the navigation, {y) 
 
 107. It is proposed, in the next place, to speak of 
 the restrictions ordinarily imposed by railway acts 
 on the general powers of the company for the 
 protection of roads, highways, and other avenues 
 of communication by land, (z) These are of various 
 kinds, so as to meet all possible degrees of inter- 
 ference or of interruption threatened by the rail- 
 way. Some, accordingly, are more general, and 
 embrace any kind of interference with a road, high- 
 way, &c. ; others are more specific, and intended to 
 provide for the particular case of the railway and 
 a road crossing each other, or the like ; others 
 
 (?/) lUingwm-th v. The Manchester and Leeds Railway Com- 
 pany, 2 R. Cas. 209. 
 
 (z) Asto provisions of Railways Clauses Consolidation Act on 
 subject of roads, see act 8 Vict. c. 20, s. 46 — 62 ; as to restric- 
 tions, &c,, which must be imported into general power of making 
 branch railways, see ante, pp. 80, 81.
 
 96 Company as constituted under the Act, 
 
 again, in lieu of any definite restriction on the com- 
 pany, give the parties interested in the existing road 
 a jurisdiction to determine in what manner altered 
 or diverted roads are to be made, and require that 
 all shall be done to their satisfaction. 
 
 108. Before, however, adverting more particularly 
 to the operation of these different kinds of restric- 
 tions, taken separately, it may be proper in the first 
 place to notice certain general rules of construction 
 applicable to the entire class, and which conse- 
 quently must be borne in mind, in any attempt to 
 explain the effect of the above restrictions, in qua- 
 lifying the general powers of the company. 
 
 109. In construing the power and the restriction toge- 
 ther, the one is not to be advanced at the expense of the 
 other. The power, therefore, is not to be curtailed 
 or cut dovvn by straining the language of the re- 
 striction beyond its fair and natural import, or by 
 implying a condition not expressly imposed by the 
 terms of the act. 
 
 A railway act authorized the company to lower 
 a road, in order to throw a bridge across it, and pre- 
 scribed the conditions upon which they were per- 
 mitted to do so, viz. that the bed of the road should 
 be lowered on both sides of the bridge by which 
 the railroad was to cross the turnpike road, with a 
 certain ascent each way, and that the company 
 should make new drains, &c. and relay and reform 
 the road, &c. The declared object of this was to 
 enable carriages to pass with safety, by giving 
 them a clear uninterrupted headway of certain di- 
 mensions under the bridge. It was held that, under 
 this provision, the company were not bound to ex- 
 cavate both the carriage way and footpath, which
 
 Powers of a Railway Company. 97 
 
 constituted the old road, but the former only, 
 the purpose for which the road was directed to be 
 lowered being attainable without any alteration of 
 the level of the footpath, and that even the carriage 
 road need not be lowered to the full width of the 
 former carriage road, there being no express enact- 
 ment to that effect, which there was respecting its 
 level, (a) So, where a railway act declared that 
 nothing in that act was to derogate from the rights 
 or privileges of any parish, over which the railway 
 should pass, acting under any local act, it having 
 been previously enacted by a prior local act for the 
 paving, &c. of a certain parish, that no person 
 should alter the form of any pavements which 
 should be made under that act, without the consent 
 of the commissioners, or in anywise encroach there- 
 on, or put up any posts, boards, &c., it was held 
 that the company were nevertheless entitled, in 
 carrying the railway by a bridge over a street un- 
 der the controul of the commissioners, to lower the 
 street, so as to give to the arch of such bridge the 
 height required by their act, the provisions of the 
 local act being clearly intended to operate as a mere 
 police regulation for the preventing what are com- 
 monly called street nuisances and encroachments and 
 the like, and therefore not applying to the case of a 
 simple lowering of the street and relaying the pave- 
 ment in the same form and of the same dimensions, 
 (which was all that the company sought to do). (6) 
 
 (a) Reg. V. Manchester and Leeds Raiticay Company, 3 A. & 
 E. N. S. 528. 
 
 (fo) Reg, V. Eastern Counties Railway Company, 3 R. Cas. 22 ; 
 S. C. 2 A. & E. N. S. 569.
 
 98 Company as constituted under the Act. 
 
 110. Secondly, although in the exercise of their 
 powers the company cannot be permitted to militate 
 against the restrictions imposed on them by their 
 act, still within the limits of such restrictions, or as 
 far as none such exist, the powers given to the com- 
 pany by their act are to he reasonably aad liberally 
 carried into effect, and the company consequently 
 must so far be considered to enjoy a discretion (not 
 however to be capriciously or arbitrarily exercised) 
 as to the best method of employing those powers. 
 Thus, where a company had a general power of 
 dealing with all roads, &c., subject only to certain 
 restrictions as to the height of the arch of any 
 bridge for carrying the railway over or across any 
 turnpike road, and the descent under such bridge, 
 it was held that a railway company were authorized 
 to sink the original surface of a turnpike road (the 
 descent thereby occasioned not being greater than 
 that prescribed by the act) in order to give the spe- 
 cified elevation to the arch of a bridge erected for 
 carrying the railway over such road, notwithstand- 
 ing the effect from the peculiar situation of the road 
 would be to render it liable to be occasionally (c) 
 flooded. So, where a railway company were em- 
 powered to make bridges over roads, &c., subject 
 to a restriction as to the width of the span of the 
 arch, the Vice-Chancellor was of opinion that the 
 company, in carrying a bridge over a turnpike road, 
 might, provided they left the requisite open space 
 under the arch, erect the piers upon the road, not- 
 withstanding the original width of the road would 
 be considerably lessened thereby, {d) 
 
 (c) Aldred and others v. The North Midland Railway Com- 
 pany, 1 Railway Cas. 404. 
 
 ((i) Her Maj. Att. Gen, v. The London and Soutliampton
 
 Powers of a Railway Company. 99 
 
 111. It is proposed in the next place to consider 
 the above restrictions taken separately, in order more 
 fully to ascertain their effect in qualifying the general 
 powers of the company. To commence with the 
 more general: (e) this usually enacts, that in all 
 cases in which any avenue of communication, such 
 as a road, wharf, quay, &c., shall be required to be 
 cut through, taken, or injured, so as to be rendered 
 impassable or inconvenient for the purposes of traf- 
 fic, the company shall first of all make another good 
 and sufficient communication as convenient as the 
 old, or as near thereto as may be ; and where the 
 road cut through, injured, &c., is a turnpike road, 
 that the substituted road, if temporary, shall be 
 made and the principal road restored within a fixed 
 period. 
 
 112. Sometimes the act imposes a penalty {f) on 
 the company for a breach of the above provision. 
 Where in the case of a private road this penalty is 
 made payable to the owner thereof, the tenant of the 
 land over which the railway passes, and not the 
 reversioner, is, it seems, the proper party to sue for 
 the penalty. (§■) Although a power is given by the 
 
 Railway Company, 9 Sim. 78 ; S. C. 1 Railway Cas. 314. The 
 company's act likewise contained a general clause providing for 
 injury to roads, but the Vice-Chancellor held that it did not 
 affect the case ; but see n. (i), p. 100. 
 
 (e) As to analogous provisions of Railways Clauses Consoli- 
 dation Act (8 Vict. C.20), see act, ss. 53 and 56, post, Ap- 
 pendix. 
 
 (/) See for analogous provision of Railways Clauses Con- 
 solidation Act (8 Vict. c. 20), ss. 54 and 57, post, Appendix. 
 
 (g) So held, on motion for new trial, by three barons against 
 one, in CoUinson v. Newcastle and Darlington Railway Company, 
 F 2
 
 1 00 Company as constituted under the Act, 
 
 act to recover such penalty before two justices, it 
 may yet be sued for in' one of tiie superior courts at? 
 Westminster, {h) 
 
 113. In construing the above restriction, there are 
 two points that it is proposed to consider ; 1st, its 
 scope and extent; and 2nd, the degree in which it 
 must he taken to qualify the general powers of the 
 company. 
 
 1st. Looking at the general tenor and purport of 
 the provision in question, it must, it is conceived, 
 be taken to apply in every case of a company so 
 dealing with a road, highway, &'C., as to destroy its 
 character and utility as an avenue of communi- 
 cation. As for instance, where a bridge and ap- 
 proaches are constructed on part of a line of turn- 
 pike road, in order to carry the same over the rail- 
 way, (a proceeding which it is obvious must render 
 some substitution necessary in the part of the line 
 intended to be occupied by the bridge) ; this is 
 clearly a taking within the meaning of the above 
 provision, (i) 
 
 114. The term "injured" here accordingly must 
 not be understood as applying simply to bodily in- 
 juries done directly to a road, wharf, &c., but eni- 
 
 not yet reported. At the trial it had been ruled that the tenant 
 was not the proper party to sue. See same case 1 C. & Kir. 
 546. 
 
 (h) Same case 1 C. & Kir. 546. See also Mayor, <5)C. of 
 Lichfield V. Simpson, 9 Jur. 989. 
 
 (i) Reg. V. Birmingham and Gloucester Railway Company, 2 
 A. & E. N. S. 61 ; S.C.2 Railway Cas. 694. The Vice-Chaa- 
 cellor in the case of the Att. Gen. v. Londim and Southampton 
 Railway Company, 9 Sim. 78 ; S. C, 1 Railway Cas. 314, seems 
 to have inclined to put a narrower construction on a similar 
 clause, but see this case commented on in that just cited.
 
 Powers of a Railway Company. 101 
 
 braces all cases where there is a destruction of the 
 usefulness of anything of the class in question as an 
 avenue of communication ; as for instance, where a 
 company carried their works in front of a wharf, 
 between it and the low water mark, so as to sepa- 
 rate the frontage from the water, thereby causing 
 great risk and inconvenience in the loading and un- 
 loading vessels, it was held that the owner had a 
 right to have a new wharf erected for him by the 
 company. (Jc) 
 
 115. So, likewise, the provision in question applies 
 to a permanent as well as to a temporary diversion 
 of a road. (/) And if a company set out a new road, 
 and then proceed to injure, cut through, &c. that, 
 they are compellable to set out another, {m) 
 
 116. 2dly. Of the extent to which the above clause 
 must he taken to qualify the powers of the company, 
 or, in other words, what it requires them to do, in 
 order to satisfy the act. The clause in question 
 then, we have seen, contemplates two cases, viz. that 
 of a permanent diversion of a road, highway, &c., 
 and that of a mere temporary diversion. 
 
 117. First, then, let us take the former case, viz. 
 that where a permanent diversion is intended by the 
 company. Looking at the requisites of the clause 
 in question, the substantial question here is, whether 
 the new road, wharf, quay, &c., is a good substi- 
 
 (A:) Bell V. Hull and Selby Railway Company, 2 Railway 
 Cas. 279 ; S. C. 6 M. & W. 699. 
 
 (/) Per Patteson, J., i?«^. v. Birmingham and Gloucester 
 Hallway Company, 2 Railway Cas. 704. 
 
 (m) See judgment of Vice-Chancellor in Attorney-General v. 
 Eastern Counties Railway Company, 7 Jurist, 806 ; S. C. 3 Rail- 
 way Cas. 337.
 
 102 Company as constituted under the Act. 
 
 tution within the meaning of the act ; or, in other 
 words, is either absolutely as convenient as the old 
 road, &c., or as nearly so as circumstances per- 
 mit. The criterion on which the determination of 
 this question must rest is sufficiently obvious, viz. 
 on a comparative estimate of the several requisites 
 of the new and old road, &c. respectively, for the 
 purposes of traffic, such as their length, breadth, 
 direction, level, and the like. If, upon such a ba- 
 lancing of their respective advantages and disadvan- 
 tages, the new road is found to be in some respects 
 better than the old, but in others less convenient, it 
 then becomes a question whether what is gained in 
 the one respect can be considered a fair equivalent 
 for what is lost in the other. 
 
 118. A railway company were proposing to di- 
 vert a road leading to the plaintiff's mill ; the ori- 
 ginal road, it appeared, was broader, and more 
 direct than the one to be substituted by the com- 
 pany, but these advantages were in a great degree 
 neutralized by the danger and narrowness of its 
 outlet communications, whereas the new line of 
 road, though narrower and more circuitous, pro- 
 mised to be safer of ingress and egress. The Lord 
 Chancellor seems to have inclined to the opinion, 
 that the new road (taking into account all the cir- 
 cumstances of the case) was a good substitute for 
 the old. (w) 
 
 119. If the new road is decidedly more inconve- 
 nient in some important particular, and there is no 
 increase of convenience gained thereby in any other 
 
 (n) lllingwoith v. The Manchester and Leeds Railway Com- 
 pany, 2 Railway Cas. 209, 210.
 
 Powers of a Railway Company. 103 
 
 respect to counterbalance it, then, it seems, the new 
 road cannot be considered to satisfy the provision 
 in question. Where, therefore, a company made a 
 substituted road twenty-seven feet broad, instead 
 of forty, which was the width of the original road, 
 and the new road was less convenient as a drift 
 way, it was held clearly not to be authorized by the 
 act. (o) 
 
 120. Generally speaking, the above question 
 would seem to be more properly a question for a 
 jury. Thus where a railway company, under the 
 powers of their act, were intending to take part of 
 an occupation road that ran through a farm, and 
 had been immemorially used by the tenants of such 
 farm, as a means of communication for agricultural 
 purposes, and in lieu thereof, to set out a road 
 making a circuit of six hundred yards, a proceeding 
 which was calculated to interfere with a purpose to 
 which the owner of the farm contemplated applying 
 a certain portion of his land, the Lord Chancellor 
 granted an injunction against any interference with 
 the road in question, until it should be decided by a 
 jury whether the road proposed to be substituted 
 by the company were within the meaning of the act, 
 a proper substitution for the road proposed to be 
 taken, (p) 
 
 121. Although, upon a comparison of their abso- 
 lute merits, the new is found to fall short of the old 
 line of road, still, if such new line is as convenient as 
 circumstances admit of its being made, it may be 
 
 (o) Reg. V. London and Birmingham Railuay Company, 1 
 Railway Cas. 317. 
 
 (p) Kemp V. The London and Bright07i Railway Company, 1 
 Railway Cas. 508.
 
 104 Company as constituted under the Act. 
 
 enough to satisfy the act. . In estimating those cir- 
 cumstances, regard can be had in general to physical 
 causes and possibilities only, and the pecuniary 
 interests or the convenience of the company cannot 
 be taken into account. Still the rule is not to be 
 stretched so far as to require the company to lay 
 out enormous sums of money, to procure a slight 
 accommodation to some persons ; and therefore 
 where a road cannot be made as convenient as be- 
 fore, without a disproportionate and unwarrantable 
 expenditure, it may be enough to make it (g) as 
 nearly so as they can, without entailing on them- 
 selves such a sacrifice. 
 
 122. It follows, from what has been here said, 
 that where a company stand convicted of a breach 
 of the above provision, they cannot excuse them- 
 selves on the score of their inability, &c. to comply 
 with its requisites. Thus where a railway company 
 were empowered to make a tunnel through a public 
 street, first setting out a temporary substituted road, 
 and by reason of the company .being precluded by 
 their act from taking land in a particular line, there 
 could be no other substitution for the street in its 
 original state, except by making a temporary bridge 
 over the line of the tunnel in that direction, this was 
 held not to excuse them from complying with the 
 provisions of their act, but that it was incumbent on 
 the company, if they made the tunnel through the 
 street in question, to make in the first instance a 
 temporary bridge in the line of the street, (r) 
 
 (9) Reg. V. Scott, 3 A. & E. N. S. 543 ; S. C. 3 Railw. Cas. 
 187. 
 
 (r) Spencer v. The London and Birmingham Railway Com- 
 pany, 1 Railway Cas. 169 j see also Kemp v. The London
 
 Powers of a Railway Company. 105 
 
 123. So likewise it would be no excuse for the 
 company to allege the steepness of the land, and the 
 state of the earth, as rendering it impossible to do 
 what their act required ; (s) or that, by reason of the 
 expiration of their powers, they were unable to take 
 the necessaay land ; {t) or that their statute did not 
 authorize their injuring a particular description of 
 property, and that they could not act up to the pro- 
 visions of their statute, without injuring that very 
 description of property, (t) 
 
 124. 2nd. Where the diversion is intended to be 
 only temporary, in addition to the requisite just con- 
 sidered, the act (where it is a turnpike road that is 
 taken, &c.) imposes the still further obligation of 
 setting out the substituted road, and restoring the 
 old road within a given period. (?*) Where a com- 
 pany are thus required to restore a road, this, it 
 seems, must be understood of a restoration of such 
 road to its original width, (.x) A company, there- 
 fore, whose powers are subjected to the above re- 
 strictions, are bound, in carrying a road over the 
 railway, to make the road of the same width as it 
 was before, up to the very point where the bridge 
 commences. 
 
 and Brighton Railway Company, 1 Railway Cas. 500 ; Manser 
 V. The Northern and Eastern Counties Hailvmy Company, 2 
 Railway Cas. 380. 
 
 (s) Reg. V. Scott, 3 Railw. Cas. 187 ; 5. C. 3 A. & E. N. S_ 
 543. 
 
 (f) Reg. V. The Birmingham, and Gloucester Railway Com- 
 pany, 2 Railway Cas. 694 ; S. C. 2 A. & E. N. S. 61. 
 
 (tt) As to provision of Railways Clauses Consolidation Act 
 about restoring roads, see act, s. 56, post. Appendix. 
 
 (i) Reg. V. The Birmingham and Gloucester Railway Com- 
 pany, 2 Railway Cas. 694 ; S. C. 2 A. & E. N. S. 61. 
 F 5
 
 106 Company as constituted under the Act. 
 
 125. 2nd, Of the more specific provisions touching 
 the crossing of roads, and the character and construc- 
 tion of bridges, ^'C, where these are the means of 
 crossing prescribed by the act. {y) 
 
 126. 1st, then, as to the mode of crossing ; this is 
 generally, in the case of a turnpike road, by a bridge, 
 tunnel or viaduct, of a given height, character, and 
 dimensions. In such a case a railway company 
 cannot interfere with a road in any other manner 
 than that specified in the act. Where, therefore, a 
 company, endowed with the usual powers of cross- 
 ing roads, &c,, purchased a private wharf, separated 
 from one of their terminus stations by a turnpike 
 road, and proceeded to lay down on the road stone 
 blocks, so as to form two runs or stone ways, level 
 with the road, for the purpose of facilitating the 
 passage of goods from the wharf across the road to 
 the station, it was held that they were not autho- 
 rized to do so ; and an injunction, which had been 
 granted to restrain the trustees of the road from 
 removing the stone blocks, was dissolved, although, 
 in the opinion of the court, no damage could result 
 from the stone blocks either to the road, or the pas- 
 sengers upon it. {z) 
 
 127. 2nd, Of the character and construction of 
 bridges, ^-c. A railway act in general not merely 
 requires the crossing to be by a bridge ; but like- 
 wise contains certain regulations, touching the cha- 
 
 (i/) As to crossing of roads and construction of bridges under 
 Railways Clauses Consolidation Act, see act, s. 46 — 52, post. 
 Appendix. 
 
 (2) London and Brighton Railway Company v. Cooper, 2 
 Railway Cas. 312 ; see also the Company of Proprietors of 
 Northam Bridge and Roads v. The London and Southampton 
 Railway Company, 1 Railway Cas. 682.
 
 Powers of a Railway Comjmny. 107 
 
 racter and construction of the bridge, as for instance, 
 touching the height and dimensions of the arch ge- 
 nerally, the inclinations of all ascents and descents 
 to and from such bridge, and the like. To consider 
 then the effect of such regulations, suppose a railway 
 company, in crossing a public street, are required to 
 make a viaduct or bridge, extending over the whole 
 width of the street, and with a certain given height 
 under it, above the level of the street, &c., a viaduct 
 composed of arches, supported upon piers or but- 
 tresses, erected for that purpose in the street, can- 
 not, as it should seem, be taken to satisfy the 
 meaning of the legislature, but there must be a bridge 
 or viaduct so constructed as that, in whatever way 
 it is made, the entire width of the street is left clear 
 and unobstructed, (a) Even though the bridge be 
 a temporary one, as for instance, where it is erected 
 for the purpose of conveying spoil earth from one 
 part on the line of railway to another, it still must 
 comply with the regulations of the act. (6) 
 
 128. Where a railway act speaks of a bridge oi' 
 given dimensions as the means of crossing a railway, 
 this must not be understood to include the ap- 
 proaches to such bridge on either side. The power 
 therefore of crossing a road by a bridge of a given 
 breadth, gives no right to narrow the road beyond 
 the span of the bridge, by extending the parapet 
 walls, but the company are bound to make the road 
 
 (ffl) Att. Gen. V. Manchester and Leeds Railway Company, 1 
 Railway Cas. 447. 
 
 (6) Att. Gen, v. Eastern Counties Railway Company, 3 Rail- 
 way Cas. 337.
 
 108 Company us constituted under the Act. 
 
 of the original width up to the very point where the 
 bridge commences, (c) 
 
 129. Of the inclination of the ascents and descents 
 to and from bridges, (d) A railway act usually pro- 
 vides what is to be the maximum rate of this incli- 
 nation, or at any rate that it is not to exceed the 
 steepness of the old road. In applying the latter 
 branch of the above provision to the case of a di- 
 verted road, the relative steepness of the new and 
 old road is to be determined, not by their compara- 
 tive acclivity, measuring the whole length of each 
 from the commencement to the end of the deviation, 
 but by a comparison of the rate of ascent on the 
 new road, from the place of diversion below the 
 bridge, to the crown of the arch of such bridge, with 
 the rate of ascent on the old road from the same 
 place to the corresponding point on that road. 
 Although an act speak of the present inclination of 
 the road which is to cross the railway, and in the 
 line of which the bridge is to be built, as the limit of 
 steepness, this applies as well to a bridge built on a 
 diverted road, as to one built on the site of a pre- 
 viously existing road. By the term " present incli- 
 nation" in such case is to be understood the inclina- 
 tion of the old road as it may exist at the time of its 
 being taken by the company, (e) 
 
 (c) Reg, V. The London and Birmingham Railway Company, 
 1 Railway Cas. 325 ; see also Reg, v. The Birmingham and 
 Gloucester Railway Company, 2 Railway Cas. 695; S. C. 2 A. 
 & E. N, S. 51, n. (a). 
 
 (d) As to the provisions of Railways Clauses Consolidation 
 Act (8 Vict. c. 20), on this head, see act, ss. 49, 50, 52, post, 
 Appendix. 
 
 (e) An. Gen. v. The London and Southampton Railway Com- 
 pany, 1 Railway Cas. 284.
 
 Powers of a Railway Company. 109 
 
 130. In providing for the mode of dealing with 
 roads, the legislature vve have seen usually makes a 
 distinction between turnpike and other roads. By 
 a turnpike road in such a case, is, it seems, to be 
 understood, a road where there is a right to set up 
 gates and take tolls. (/) 
 
 131. We are led in the next place to the consi- 
 deration of another kind of restriction, viz. that 
 which gives to the parties interested in any pre-exist- 
 ing avenue of communication a jurisdiction to deter- 
 mine how a road, highway, <^c., which it is proposed 
 to alter or divert, is to be made, and requires that all 
 shall be done to those parties' satisfaction. There 
 are two things to be here considered ; 1st, the scope 
 and extent of such an enactment ; 2nd, its operation 
 in qualfying the powers of the company. 
 
 132. 1st. The ex^en^ of such a restriction, and the 
 cases in which it applies, must of course depend on 
 the terms of the particular act of parliament by 
 which it is imposed. Where an act directed that all 
 alterations of certain roads within a parish were to 
 be made under the directions of the surveyors of the 
 parish, the Vice-Chancellor seems to have thought 
 it fairly questionable, whether any authority was 
 given to the surveyors in the case of a diversion of 
 one of the roads in question, the legislature in other 
 parts of the act plainly distinguishing between an 
 alteration and a diversion. (^) 
 
 133. 2nd. Under a restriction of the above kind^ 
 
 (f) The Company of Proprietors of Northam Bridge and 
 Roads V. The London and Southampton Railway Company, 1 
 Railway Cas. 672 ; S. C. 6 M, & W. 428. 
 
 (g) London and Brighton Railway Company v. Blake, 2 Rail- 
 way Cas. 322.
 
 110 Company as constituted under the Act. 
 
 the parties, in whose favour it is introduced, clearly 
 have an authority (of course not to be capriciously 
 exercised) to determine what is a proper road to be 
 made by the company. As incidental thereto, they 
 necessarily enjoy a right to apply to the proper court 
 to have a road made in a proper manner directly ; 
 as for instance, if they apply by mandamus ; or they 
 may apply to a court of equity, and so restrain the 
 company from making the road in question other- 
 wise than as it ought reasonably to be to their 
 satisfaction. But, although the parties in question 
 are thus privileged to regulate in some degree what 
 is to be done by the company touching the forma- 
 tion of roads, this does not entitle them, in case they 
 are not pleased with something done by the com- 
 pany, to take the law into their own hands, and stop 
 the proceedings of the company. Where therefore 
 the surveyors of the roads of a parish, who under a 
 railway act claimed a jurisdiction to decide about 
 the formation of all roads in the parish, threatened 
 to put up fences on the sides of a temporary di- 
 verted road at the point where it was crossed by 
 the railway, in order to stop the company from 
 crossing such temporary road with engines, &c. 
 in a manner dangerous to the public, it was held 
 that they had no right under the act to interfere 
 with the railway in the manner proposed, but that 
 they ought to have applied for an injunction or 
 a mandamus against the company, (h) 
 
 Where the county surveyor was made under a 
 railway act the ultimate referee of the manner in 
 which a bridge was to be built by one railway com- 
 
 (h) The London and Brighton Eaitway Company v. Blake, 
 2 Railway Cas. 322.
 
 Powers of a Railway Company. Ill 
 
 pany across the line of another, it was held that he 
 had not exhausted his authority by a decision not in 
 conformity with the act of parliament, but that he 
 might make a second. (?') 
 
 134. The next class of provisions that it is pro- 
 posed to consider, are those ordinarily introduced 
 into railway acts for the i^rotection of messuages, 
 buildhigs, and other jtroperty of a like description, or 
 appurtenant to or connected with the above. These 
 are distinguishable according to the object which 
 they contemplate, viz. according as they prohibit the 
 company from taking property of the kind in ques- 
 tion either absolutely, or except upon certain con- 
 ditions ; or else render it compulsory upon them in 
 certain cases to take it ; or prescribe some particular 
 mode of proceeding touching the property in ques- 
 tion. 
 
 135. First, then, a railway act usually provides 
 that no houses, buildings, <^c. are to be taken for the 
 purposes of the act, other than those specif ed in the 
 schedule, without the consent in writing of the pro- 
 prietor. The substantial inquiry in construing the 
 above provision, is as to the quality of the property 
 intended by the act to be protected. Now such a 
 provision evidently has reference to the privilege 
 universally accorded by the law of this country to 
 buildings inhabited by man. These consequently, 
 it is natural to conceive, constitute the principal 
 things contemplated by the legislature in inserting 
 
 (i) Clarence Railway Company v. Great North of England, 
 Clarence and Hartlepool Junction Railway Company, 23 Law 
 Journ. Exch. 137 ; S. C. 13 M. & W. 706 ; Great North of 
 England, &;c. Railway Company v. Clarence Railway Company, 
 1 Coll. 507.
 
 112 Company an constituted under the Act. 
 
 such a provision. Hence, even though other de- 
 scriptions of property are mentioned in the act, they 
 must in general be construed of something bearing 
 a reference to the principal thing. A railway act 
 enacted that the company should not be authorized 
 to take any house or other building, Sec, or any 
 ground set apart and used as a garden, orchard, 
 yard, park, paddock, plantation, planted walk, or 
 avenue to a house, or any inclosed ground, planted 
 as an ornament or shelter to a house, or planted or 
 set apart as a nursery for trees, other than such as 
 were specified in the schedule to the act, &c. The 
 Vice-Chancellor considered that, in the above sec- 
 tion, the term yard was to be taken with reference 
 to a building, the only other thing spoken of, wholly 
 disconnected from a house, being a nursery for trees, 
 the reason for the exception of which was almost 
 evident on the face of it. {k) 
 
 13G. Provisions of the second class are in ge- 
 neral framed to meet two cases ; 1st, where part 
 of a messuage, building, ^-c. is required for the pur- 
 poses of the railway, in which case the act gives the 
 owner power to insist that the company shall take 
 the whole or none ; (/) and 2nd, where the property 
 lies within such a distance of the railway as to be 
 subject to deterioration by reason of its construc- 
 tion. The substantial question that arises in the 
 former of the two cases is the same as that which 
 has been just considered, and must therefore be de- 
 termined upon like principles. Consequently, even 
 
 (fe) Stone V. The Commercial Bailway Company, 9 Sim. 626 ; 
 S. C. 1 Railway Cas. 395. 
 
 (/) As to analogous provision in Lands Clauses Consolidation 
 Act (8 Vict, c. 18), see act, s. 92, post, App.
 
 Potvers of a Railway Company. 1 1 S 
 
 though an act, in specifying the property intended 
 to be thus privileged, speak expressly of other de- 
 scriptions of property than houses or buildings, yet 
 the terms so employed must be construed with re- 
 ference to those with which they are found in con- 
 nexion, and so as to preserve and carry out the pre- 
 vailing unity of idea that pervades the clause. A 
 railway act enacted, that in case of application by 
 the company for any part of any house, garden, 
 yard, warehouse, building, or manufactory, they 
 should not, where the owner wished to part with 
 the whole, and gave notice of the same to the com- 
 pany, be empowered to take or use less than the 
 whole of such house, garden, yard, &c. The com- 
 pany wished to take, for the purposes of their act, 
 part of a bonded timber yard of three acres in ex- 
 tent, containing certain detached sheds for stowing 
 timber, &c. The Vice-Chancellor was of opinion, 
 that the mere collocation of the words implied that 
 the terms " garden and yard" were to be taken in 
 connexion with a house, and that the premises in 
 question not being connected with a messuage or 
 building, (otherwise than as a deal shed, &c. might 
 be called a building, which for the purpose in ques- 
 tion it could not,) were not privileged property 
 within the meaning of the above section, (m) 
 
 137. Where a railway act, instead of specifying 
 any particular quality or description of property, 
 speaks of the 'property of this or that jierson as the 
 subject of protection, using the term apparently in 
 the collective sense, that it seems will be construed 
 
 (m) Stone v. Commercial Railway Company, 1 Railway Cas. 
 375; S. C. 9 Sim. 621.
 
 114 Company as constituted under the Act. 
 
 to include whatever is comprised in one take or 
 lease, (n) 
 
 138. In the second case, viz. that of a house, S:c. 
 lying within such a distance of the railway as to be 
 subject to deterioration by reason of the construc- 
 tion, &c. thereof, a like remedy is provided as in the 
 former, viz. by empowering the owner to insist on 
 the purchase of the thing injured. The consider- 
 ation of the effect of this provision obviously in- 
 volves two points ; one, which has been already 
 considered under the preceding head, touching the 
 quality of the property intended to be protected, 
 and a second, touching its situation within the given 
 distance. To proceed then to the latter, where the 
 entire house, &c. is within the requisite distance, no 
 question can of course be made about the case being 
 within the provision. But suppose that part of the 
 thing deteriorated is within, and part without such 
 distance, the question then would seem to come to 
 this : is it a case where the premises constitute one 
 indivisible whole, and consequently the purchase and 
 severance of a part would be ruinous to the whole, 
 and where the part within the requisite distance 
 constitutes a very large proportion of the property ? 
 If so, the whole it seems must be deemed within the 
 distance, (o) 
 
 139, A public house was forty-four feet in depth ; 
 the greater part was within fifty feet of the railway, 
 (that being the specified distance under the par- 
 
 (n) Reg. V. The London and Greenwich Railway Company, 
 3 Railway Cas. 144, judgment of Lord Denman, C. J. ; S. C. 
 3 A. & E. N. S. 166 ; 20 Law Journ. Q. B. 187. 
 
 (o) Walker v. London and Blackmail Railway Company, 
 3 A. & E. N, S. 744 ; H. C. 21 Law Journ. Q. B. 88.
 
 Powers of a Railway Company. 115 
 
 ticular act), but a portion, comprising the bar, and 
 varying in depth from thirteen to sixteen feet, was 
 more than fifty feet from the railway ; it was alleged 
 that the premises were deteriorated by the railway, 
 and that if the former portion only were purchased, 
 the residue would be useless to the owner ; it was 
 held that compensation was claimable for the public 
 house, under a provision of the kind under consi- 
 deration, (o) 
 
 140. But where, instead of this indissoluble con- 
 nexion between the different parts of the premises, 
 there is a mere extraneous one, such as that of being 
 held under one take or lease, and nothing to show 
 that the company by taking the one part will inter- 
 fere with the residue, then it seems they will not be 
 compelled to purchase more than the part of the 
 premises actually within the requisite distance, (p) 
 S. and Co. were lessees of a piece of ground, (p) 
 on which stood a vinegar manufactory, warehouses, 
 &c. a principal dwelling house and garden, and five 
 smaller dwelling houses. These premises were so 
 situated that a straight line drawn parallel to the 
 railway at the distance of fifty feet (being that spe- 
 cified by the particular act) would include a part of 
 the principal dwelling house and the garden, but 
 would pass between the rest of the premises and the 
 railway. It was held that the company were not 
 bound, under a provision such as that in question, 
 to purchase more than the principal dwelling house 
 and garden, (p) 
 
 (o) Walker v. London and Blackmail Railway Company, 
 3 A. & E. N. S. 744 ; S. C. 21 Law Journ. Q. B. 88. 
 
 (p) Beg, V. The London and Greenwich Railway Campany, 
 3 Railway Cas. 138 ; S. C. 3 A. & £. N. S. 166.
 
 116 Company as constituted under the Act. 
 
 141. Srdly. As to the assessment; a railway act 
 sometimes requires that, where damage to a man- 
 sion is in question, the inquisition shall be taken by 
 a special jury. The trying by a common jury in 
 such a case would seem to amount to an excess of 
 jurisdiction, that might perhaps be taken to subject 
 the company to an action of trespass, or (in the ab- 
 sence of any provision to the contrary) be a ground 
 for setting aside the proceedings, {q) 
 
 142. Another class of provisions, bearing a close 
 analogy to those last mentioned, and of a very ob- 
 vious tendency, are those which restrain a railway 
 company from approaching within a given distance of 
 premises with their line of rail, works, &c. There 
 are two things to which such a prohibition is usually 
 made to extend; 1st, the making of any railroad, 
 tram, or other roads, within the prescribed limits ; 
 2nd, the making or establishing any station, yard, ^-c. 
 within the same. The principal thing prohibited 
 by the former clause being a railway or tramroad, 
 the other words, notwithstanding their generality, 
 must be so construed as to preserve the unity of the 
 idea ; they can only therefore be understood to 
 noean something ejusdem generis with the principal 
 matter prohibited, viz. some new channel of com- 
 munication enabling the public to pass to the rail- 
 road. The making or opening a mere passage or 
 pathway, communicating at the one end with a 
 public road, and at the other with the railway, and 
 allowing passengers to pass along it to the railway 
 for the purpose of being taken up and set down by 
 
 (q) Reg, V. The Bristol and Exeter Railway Company, 2 
 Railway Cas. 102 ; S. C. 11 A. & E. 202, n. (a).
 
 Powers of a Railway Company. 117 
 
 the trains, stopping at the end of the passage, does 
 not therefore fall within the prohibition, (r) 
 
 143. The second thing forbidden is the construct- 
 ing any station, waiting place, S^c. within the pre- 
 scribed limits. This branch of the prohibition does 
 not preclude the company from stopping and taking 
 up or setting down passengers within such limits. (5) 
 Neither can a mere passage way, along which pas- 
 sengers are allowed to pass at particular times to 
 the railway, but not to wait there, nor an hired 
 room in the house of another party, though em- 
 ployed by the company for the ordinary purposes 
 of a waiting room, &c. be construed as falling within 
 the forbidden description, (r) 
 
 144. But where the company erected a platform 
 and made steps leading down to it from the top of 
 the embankment of the railway, and took up and 
 set down passengers there, and otherwise used the 
 platform as a station, and also commenced making a 
 carriage road from a certain lane to the top of the 
 embankment, it was held that the road, platform 
 and steps collectively constituted a station (<). It 
 was also held, that the steps would come under the 
 head of " machinery," or " machinery or other 
 erection," spoken of in the prohibitory clause, and 
 therefore fell within the same ; and that a perma- 
 nent ladder would be an erection within the meanin<y 
 of the same clause. (J) 
 
 (r) The Provost of Eton College v. The Great Western Rail- 
 way Company, 1 Railway Cas. 200 ; 5. C. 3 Jur. 163. 
 
 (s) lb. ; Lord Petre v. Eastern Counties Railway Company, 
 3 Railway Cas. 367. 
 
 (t) Lord Pelre v. Eastern Counties Railway Company, 3 Rail- 
 way Cas. 367.
 
 118 Company as constituted under the Act. 
 
 145. Sometimes the prohibition is couched in 
 more comprehensive terms, and made to include not 
 simply certain specific classes of things, but gene- 
 rally all buildings or conveniences for the deposit, 
 &c. of goods, articles, &c. The erection of an en- 
 gine-house, stable, water-tank, and cottages within 
 the forbidden distance, would seem to be a clear 
 infringement of a prohibition couched in the terms 
 last supposed, {u) 
 
 146. Even though the prohibitory clause, in enu- 
 merating those things which are meant to be for- 
 bidden, be found to annex the term jmblic by way 
 of prefix to such enumeration, yet this would not, it 
 seems, materially affect its operation. In the first 
 place, the term in question can hardly be construed 
 to govern and affect all the words of enumeration 
 used in the clause ; and even assuming it to do so, 
 still it cannot, it should seem, be considered as ex- 
 clusively applicable to things of public resort, or 
 such as are immediately used by the company in 
 the discharge of what may be termed the public 
 duty they have undertaken, but may fairly be ex- 
 tended to all things tending even mediately to the 
 same purpose ; such, for instance, as buildings and 
 conveniences for keeping and repairing, &c. all ma- 
 chines, utensils, &c. which are requisite to keep the 
 line of railway, or the machinery on the line, in 
 order for the use of the public, (u) 
 
 147. The next class of provisions that it is pro- 
 posed to notice, are those relating to minerals {x), and 
 
 (w) Gordon v. Cheltenham and Great Western Railway Com- 
 pany, 2 Railway Cas. 800, 872 ; .S. C. 5 Beav. 229. 
 
 (x) As to provisions of Railways Clauses Coosolidation Act 
 on this head (8 Vict. c.20), see act, s. 77 — 85, post, Appendix.
 
 Powers of a Railway Company. 119 
 
 intended for the protection of the owners of mines 
 and minerals lying in the route of the railway. 
 Under a railway act, the company in general take no 
 property in the mines and minerals under the lands 
 purchased by them, except so far as may be re- 
 quired for the purposes of their act, but the original 
 proprietors may work them, provided that in so 
 doing no damage is wilfully done to the railway, and 
 the mines are not worked in an improper manner. 
 The company at the same time have the option of 
 purchasing so much of the strata as lies under or 
 within a given distance of the railway, upon notice 
 of the proprietor's intention to commence working 
 such part of the minerals. This option, however, 
 the company are usually required to exercise within 
 avgiven time after the receipt of the above notice, 
 or else it determines, and then the owner becomes 
 as fully entitled to get this as any other part of the 
 mineral strata in question. The general effect of 
 the above provision seems to be, to throw upon the 
 company all risk attendant on the future working of 
 the mines. Accordingly, if, from tlie general nature 
 of the soil, the course and position of the mineral 
 strata, &c. there are substantial grounds to appre- 
 hend that such working will endanger the railway, 
 they must take care to guard against the danger by 
 the due exercise of the option reserved to them. 
 If they neglect to do this, they are then at the mercy 
 of the mine owner, who may work as freely as if 
 no railway existed, provided that in so doing he 
 abstain from wilful damage, and any improper me- 
 thod of working. 
 
 148. Sometimes the power of working the mines 
 is given only on the condition that the owner do no
 
 120 Company as constituted under the Act. 
 
 damage to the railway, or that he make good the 
 same. Under this latter provision the risk of future 
 working must, it seems, fall upon the mine owner ; 
 he must, consequently, take care for the future in 
 working his mine to do no damage to the railway, 
 or, if he does, he must repair it ; and if, in order to 
 avoid so doing, he is obliged to interrupt the working 
 of his mine, or to work it in a more expensive 
 manner than what would otherwise have been neces- 
 sary, or is otherwise put to inconvenience, he cannot 
 nevertheless claim any compensation from the com- 
 pany (2/)- 
 
 (i/) Rex V. Leeds and Selby Railway Company, 3 A. & E. 683- 
 As to analogous provisions in canal acts, see Dudley Cunal Com- 
 pany V. Grazebrook, 1 B. ik Ad. 59 ; Wyrley and Essiugton Navi- 
 gation Company v. Bradley, 7 East, 368. There a canal act pro- 
 vided that the canal company should not be entitled, on purchas- 
 ing lands for making a canal, to any coal mines, &c. under the 
 same, but that such mines should belong to the same persons as 
 would have been entitled to them if the act had not been made ; 
 but it required the owners to give notice to the company ot 
 their intention to work their mines within ten yards of the canal, 
 and that the company might inspect the mines and might stop 
 the further working of them, paying compensation to the owners ; 
 it was held that the right of the owners to work within the ten 
 yards was left as before the act, if after notice given by them 
 to the company the latter did not purchase out their rights ; 
 and that the canal being damaged by the nearer approach of 
 the mine, after such notice and nonpurchase, no action lay agaiost 
 the coalowner for such injury, which happened by default of 
 the company in not purchasing. Where under a canal act the 
 Company required a certain breadth of coal on each side of the 
 canal to be left, held, that lessee of coal entitled to compen- 
 sation for loss he sustained by not working, that is, to the value 
 of the coal when gotten, deducting the expense of getting it out, 
 and this independent of the compensation to the reversioner for
 
 Powers of a Railway Company. 121 
 
 149. It is proposed in the next place to speak of 
 a class of provisions, the object of which is to pro- 
 vide for the accommodation [z) of the adjoining lands 
 generally, and more particularly to guard against 
 the interruption of the communication by a railway, 
 and the mischiefs incidental thereto. It is of these 
 provisions, so far as they relate to the latter object, 
 that is proposed here to speak more particularly. 
 Now a railway, it is obvious, is calculated to inter- 
 fere with the communications of the country through 
 which it runs principally in two ways, 1st by sever- 
 ing land, and so destroying that mutual connexion 
 of its parts which is necessary for their commodious 
 use and occupation ; and 2ndly, by presenting a bar- 
 rier to the opening of any new channel of commu- 
 nication, such as roads, &c. between the country on 
 one side of such railway, and that on the other. 
 
 150. To remedy the former class of mischiefs, a 
 railway act usually provides that the company shall 
 make and erect all such gates, bridges, arches, pas- 
 sages, &c., over, under, &c., the railway, as two or 
 more justices shall, upon application of the owners 
 of any lands, judge necessary (in case there shall 
 be any dispute about the same) for the use of the 
 owners of the land through which the railway 
 passes, and further gives a liberty to the owners (a) 
 
 the value of the coal in the bed. Barnsley Canal Company v. 
 Twibell, 22 Law Journ, Ch. 434; S. C. 3 Railway Cas. 471 ; 
 7 Beav. 19. 
 
 (2) As to analogous provisions of Railways Clauses Consoli- 
 dation Act (8 Vict. c. 20), see act, s. 68—75, post, App. 
 
 (a) As to the right of owners under Railways Clauses Consoli- 
 dation Act (8 Vict. c. 20) to cross railway until accomiaodatiou 
 made, see act, s. 74, post, App. 
 
 G
 
 122 Company as constituted under the Act. 
 
 and occupiers of adjoining knds, their servants, &:c. 
 (except in cases where a proper communication has 
 been made by the company at their own expense) 
 to cross without payment of toll, provided they do 
 not thereby impede the traffic. The result of the 
 above enactments seems to be this : until the com- 
 pany make a communication, the owner may cross 
 where he likes, and is not bound to apply to the 
 company to make him a communication, or to the 
 magistrates to direct them to do so ; but if a com- 
 munication is once made by the company, he ceases 
 to have a right of crossing at any other place, but 
 must, if he disapproves of it, go before the magis- 
 trates, (b) 
 
 151. A party may lose this right of crossing the 
 railway not only in case of a proper communication 
 being made for him by the company, but likewise 
 (where the act so provides) by an arrangement with 
 the company that supposes a total separation of the 
 land. The term " arrangement" here does not ne- 
 cessarily mean a positive agreement between the 
 company and the party ; but if a party prefer before 
 the sheriff's jury a claim as for loss by a total 
 severance of his land, and receive compensation 
 accordingly, this is an arrangement within the mean- 
 ing of the act, and debars the party from afterwards 
 crossing the railway for the occupation of his land.(c) 
 
 (6) The Grand Junction Railway Company v. White, 2 Rail- 
 way Cas. 559 ; S.C. Q M. 6e W. 214. This right of crossing 
 was held not to be taken away by a subsequent section of the 
 same act, which prohibited any one riding, &c., upon the rail- 
 way, except in crossing at places to be appointed for that pur- 
 pose, 6cc., as the latter section was taken to be qualified by the 
 former that conferred the above right. 
 
 (r;) l^hiniiing v. Eaiterrt Counties Railway Company, 12 M. 
 & VV. 237 ; S. C. 22 Law Journ. Exch. 265.
 
 Powers of a Railway Company. 12^ 
 
 152. Sometimes a landowner stipulates with the 
 company for a communication of a certain ascer- 
 tained kind ; this may naturally be expected to be 
 the case wherever, from the circumstances of the 
 property or the mode in which it is to be affected 
 by the railway, the diminution or loss of the pre- 
 existing means of communication would be calcu- 
 lated fatally to deteriorate its value ; as, for instance, 
 where the line of railway runs right through a large 
 property, or in the neighbourhood of a mansion. 
 Under such circumstances, the covenantee has ob- 
 viously a very material interest in the performance 
 of the contract by the company, an interest so ma- 
 terial as to render its nonperformance in general 
 incapable of being adequately compensated by da- 
 mages : a court of equity will accordingly decree 
 the specific performance of the contract, the object 
 of it being a clearly and distinctly defined act, to be 
 performed on the covenantor's own land, and the 
 other side materially interested. 
 
 153. A railway company covenanted with a party, 
 through whose park the line of railway was intended 
 to run, to construct him an archway of given dimen- 
 sions at such place as the latter should think most 
 convenient in his pleasure grounds. The company 
 having neglected to comply with the party's request 
 to fulfil the covenant, he filed a bill against them to 
 compel a specific performance, which was decreed 
 accordingly, (d) 
 
 154. To remedy the second species of inconveni- 
 ence, it is usually provided, that the act is not to 
 
 (d) Storer v. Great Western Railway Com-pany, 3 Railway 
 Cas. 106 ; S. C. 2 Y. & Coll. .V. C. 48.
 
 124 Company as constituted under the Act. 
 
 prevent the owners of adjoining lands, under certain 
 restrictions necessary for the protection of the rail- 
 way company, making branches &c., to communicate 
 with and fall into the main railway, or communi- 
 cating across such railway, (e) Such a provision, it 
 seems, is tantamount to a statutory declaration, that 
 the railway in question shall be no obstacle to the 
 continuation of any roads, &c., that already exist, or 
 may be legally formed, in a direction to cross or fall 
 into such railway ; but that parties shall be at 
 liberty to carry their communications over the rail- 
 way as they might have done over the same space 
 or area before it was occupied by any railway. {/) 
 No limitation accordingly, except what is provided 
 in the restrictions above alluded to, can in general 
 be put on the right to make or use roads, branch 
 railways, &c., under the above provision in any 
 number or direction, or for any purpose that parties 
 may please, even though they are made in such 
 situations as to interfere or compete with that of 
 the company. (/) 
 
 (e) As to power to make branch railways under Railways 
 Clauses Consolidation Act (8 Vic. c. 20,) see act, s. 76, post, 
 Appendix. 
 
 (/) Monklandand KirkintiLlnch Railway Company v. Diion, 
 3 Railway Cas. 273. In that case the 80th clause of the com- 
 pany's act was as follows, viz. that nothing therein contained 
 should be construed to prevent any owner or occupier of any 
 ground, through which the said railway might pass, from carry- 
 ing, at his or their own expense, any railway or other road, or 
 any cut or canal, which such owner or occupier was authorized 
 to make in his or her lands and grounds, across the said main 
 railway, within the lands of such owner or occupier, &c. See 
 also the 79th clause. See also judgment of Wigrara, V. C. in 
 North Union Railway Company v. Bolton and Preston Eailuiay 
 Company, 3 Railway Cas. 364.
 
 Powers of a Railway Company. 125 
 
 155. Even where a statute requires a party to be 
 ©ccupier of the land on both sides the railway, to 
 entitle him to the benefit of the above provision, it 
 is not, it should seem, on this account to be con- 
 strued to mean simply roads for the special service 
 and benefit of such land ; at any rate, its operation 
 is not to be confined to land held as one estate at 
 the time the original railroad was made. Where 
 therefore one, who held land through which a rail- 
 way passed, subsequently took a lease of the adjoin- 
 ing land, it was held that he had a right under a 
 provision such as that last supposed, to make a 
 branch railway across the main line, communicating 
 with the subsequently demised property, (g-) 
 
 156. Srdly. Of the company' s powers ofalienation.(h) 
 Looking at the general character of a railway com- 
 pany, and the design of its institution, such a com- 
 pany cannot, it is conceived, be taken to enjoy any 
 other powers of ahenation than what are expressly 
 vested in it by its act of incorporation. To examine 
 the nature and extent however of the above powers 
 more particularly, let us consider them as they relate, 
 1st, to sales ; 2dly, to mortgages ; and 3dly, to the 
 granting of leases. 
 
 157. 1st, As to the company's powers of sale. 
 The company are usually empowered by their act 
 to sell surplus lands, (?) subject however to this pro- 
 
 (g) See page 124, note (f). 
 
 (h) As to restriction of express powers of selling or leasing 
 railways, given by the acts of parliament relating to such rail- 
 ways, see 8 & 9 Vic. c. 96, post, App. 
 
 (i) As to provisions of Lands Clauses Consolidation Act, 
 (8 Vic. c. 18) on the subject of the sale of lands purchased for 
 extraordinary purposes, see act, s. 13, post, Appendix. See 
 same of snrplus lands, ib. s. 127 — 131, post. Appendix.
 
 1 26 Company as constituted under the Act. 
 
 viso, that, before disposing of them, they offer them 
 in the first instance to the owners of the adjoining 
 lands. The effect of this proviso is to interpose a 
 sort of conditional obstruction to the conveyance of 
 such lands. The company therefore are not inca- 
 pacitated thereby to contract for the sale of such 
 lands ; though they cannot carry such contract into 
 execution till the requisite offer is made and de- 
 clined by the parties entitled to the right of pre- 
 emption, {k) 
 
 158. 2nd, As to the company's powers of mort- 
 gaging. {I) Under the usual provisions of a rail- 
 way act, the company are empowered to mortgage 
 the undertaking and tolls. This does not seem to 
 authorize a mortgage of the company's land, {m) 
 
 159. 3rd, Of the company's powers of leasing, (n) 
 According to the usual provisions of a railway act, 
 the company are empowered to grant leases of the 
 rates and tolls payable under the act. To suppose 
 them possessed of leasing powers, which should go 
 beyond this, and include the railway, and the stations, 
 warehouses, &c., belonging thereto, (in the absence, 
 that is to say, of an express provision for the pur- 
 pose) would not be without its difHculties. Railway 
 
 (/c) 17<e London and Greenwich Railway Company v. Good- 
 child, 22 Law Journ. Ch. 224 ; S.C.Z R. Cas. 507. 
 
 (0 As to power of mortgaging under Companies Clauses 
 Consolidation Act (8 Vict. c. 16) see act, s. 38, post, Ap- 
 pendix. 
 
 (m) See Doe d. Myatt v. St. Helen'iand Runcorn Gap Rail- 
 way Company, 2 A. & E. N. S. 364; S. C. 2 Railway 
 Cas. 756. 
 
 (7i) For provisions of Railways Clauses Consolidation Act 
 (8 Vict. c. 20.) as to leasing of railway, see act, ss. 112, 113, 
 post, Appendix.
 
 Powers of a Railway Company. 127 
 
 acts in general embody various regulations of police 
 relative to the carriages, engines, &c., to be brought 
 on the railway, which the company are charged to 
 enforce ; and it is very questionable whether their 
 lessee could be their delegate as to this trust ; while 
 it is certain that the company out of possession could 
 not discharge the duty so conveniently or perfectly 
 as where they are in possession, (o) 
 
 II. — Of the Suspension, Cesser, or Determination of 
 the Powers of the Company. 
 
 160. We have in the next place to treat of the 
 suspension, cesser, or determination of the above 
 powers. This may be brought about in various 
 ways ; 1st, by the failure of the consideration on 
 which they are granted ; 2nd, by the completion of 
 the object, for the execution of which such powers 
 are granted ; and Srdly, by the lapse of time. 
 
 161, 1st, Of a. Failure of the Consideration, 
 and its effect in determining either temporarily or 
 absolutely the compulsory powers of a company. 
 Such a failure of consideration may arise in two 
 ways, either from something in the company's own 
 state, condition, or conduct ; or 2dly, from matter ex- 
 trinsic. First, powers such as those under consider- 
 ation, interfering so extensively with private rights 
 and private property, are of course never granted 
 by the legislature, save in consideration of some great 
 public good, which it is hoped to attain through the 
 medium of the undertaking to be completed by 
 virtue of those powers ; a good, which, in the eyes 
 
 (o) See judgment of Lord Denman, C. J. in Reg. v. London 
 and South Western Railway Company, 1 A. & E. N, S. 580.
 
 128 Company as constituted under the Act. 
 
 of the legislature, is of so paramount a nature as to 
 counterbalance the amount of suffering inflicted in 
 consequence on individuals. The powers in ques- 
 tion consequently must be regarded as enjoyed on a 
 certain condition, viz. that the company shall, by 
 completing their undertaking, enable the public to 
 reap the benefit, which is to be the equivalent for 
 the sacrifice made by individuals. Wherever, there- 
 fore, it appears that the undertaking cannot be com- 
 pleted, and that the public cannot consequently 
 derive the proposed benefit, this, it seems, is clearly 
 so substantial a breach of the condition in question, 
 as must be taken to involve a cesser of such powers 
 either temporary or absolute, according as the 
 obstacle in the way of the fulfilment of the design is 
 or is not capable of ultimately being removed. Sup- 
 pose therefore that a railway company procure an 
 act for the formation of a railway over a given line 
 of country, on a representation that a particular sum 
 will enable them to complete it, and that subse- 
 quently they prove unable to complete their works 
 either from the admitted inadequacy of the sum 
 contemplated by the legislature, or from a failure to 
 raise that sum, a court of equity would, it seems, 
 interfere to protect an individual against any exer- 
 cise on the part of the company of the powers 
 delegated by the act, so long, at least, as any such 
 supposed incapacity should continue to operate, and 
 until it should be made apparent that the public 
 would derive from that exercise the benefit intended 
 them by the act.(p) A company would seem to sub- 
 
 (p) Blakemnre v. The Glamorganshire Canal Navigation, 1 
 M. & K. 164 ; Mayor, ^c. of King's Lynn v. Pemberlon, 1 
 Swans. 250 ; Agar v. The Regent's Canal Company, Coop.
 
 Powers of a Railway Company. 129 
 
 ject themselves to a like cesser of their powers, by 
 any substantial departure from the plan of the under- 
 taking contemplated by parliament, as, for instance, 
 if they deviate the actual line of the railway into 
 property not comprehended in their act, (q) or 
 change the terminus of their railway, and, instead of 
 proceeding to some large town or city, make it to 
 terminate in an obscure village, (r) But to procure 
 the interference of a court of equity on this latter 
 ground, it must it seems be shown that the devia- 
 tion is final, and that the plan contemplated by the 
 act can never consequently be completed. If there 
 is no final abandonment of the parliamentary plan — 
 if it is still within the power of the company — and, 
 as far as appears within their intention also, to 
 change their resolution and complete their line of 
 railway according to the original design, the court 
 would hardly, it is conceived, grant an injunction 
 against them to prevent their getting possession of 
 land which, for aught that the court can tell, they 
 may apply, when taken, strictly in accordance with 
 the purposes of the act. (5) Neither, it seems, 
 would a court of equity entertain the application 
 of a party for an injunction against the company on 
 
 77 ; S. C. cited, 1 Swans, ubi supra; Lee v. Milner, 2 Y.&cC. 
 619 ; Thicknesse v. Lancaster Canal Company, 4 M. & W. 491. 
 But see judgment of Lord Chancellor in Salmon v. Randall, 3 
 M. & Cr. 444. 
 
 (q) See judgments of Parke and Alderson, Bs. in Doe d. Payne 
 V. The Bristol and Exeter Railway Company, 2 Railway Cas. 
 97 ; S. C.6 M. & W. 320 ; Blakemore v. The Glamorganshire 
 Canal Company, 1 M. & K. 163 ; Lee v. Milner, 2 M. & W. 
 840. 
 
 (r) Lee v. Milner, 2 Y. & C. 619, judgment of Alderson, B. 
 
 (s) Lee V. Milner, 2 Y. & C. 611. 
 G 5
 
 130 Company as constituted under the Act. 
 
 the ground of deviation, without he can show that 
 his interests are adversely affected thereby. (<) A 
 landowner for instance cannot complain of a varia- 
 tion of the line of railway at a distant point made 
 with the consent of the landowner there, and no 
 way affecting his own property, (t) 
 
 162. 2dly. Of a failure of consideration from extrin- 
 sic circumstances. The rule is the same, where the 
 object of the legislature in incorporating the com- 
 pany, and endowing them with compulsory powers, 
 is frustrated by extrinsic circumstances. But, if a 
 part of the object can be shown to exist, the com- 
 pany would at any rate be entitled to proceed with 
 their railway so far as to effectuate the intention of 
 the legislature to the extent that it is still practicable. 
 An act of parliament gave a right to carry on a rail- 
 way with a view to a twofold advantage ; to carry 
 the coal of the proprietors on cither side of such 
 railway to H, and beyond that to communicate with 
 another railway, then, as it was supposed, about to 
 be constructed. It was held, that even though this 
 latter railway were subsequently abandoned, the 
 former might still be completed up to such a point 
 as to enable the company to accomplish the former 
 part of their object, (m) 
 
 163. 2dly. Of Determination of Powers by 
 Completion of Object. Compulsory powers may 
 become extinct by reason of the completion of the 
 purposes for which they are grantad. (v) Such a 
 
 (f) Lee V. Milner, 2 Y. & C. 611. 
 
 (u) Clarence Railway Company v. The Great North of Eng- 
 land, Clarence aiid Hartlepool Junction Baihvay Company, 2 
 Railway Cas. 780 ; S.C.6 Jur, 269. 
 
 (v) Blakemore v. The Glamorganshire Canal Navigation, 1 
 M. & K. 165 ; Salmon v. Randall, 3 M. & Cr. 446.
 
 Powers of a Railway Comfany. 131 
 
 limitation indeed is obviously implied in the very 
 nature of powers of the above description, which are 
 only granted for the attainment of a certain object. 
 A distinction however must be here taken according 
 as the act contemplates a certain defined purpose, or 
 a continuing one. In the former case, when once 
 the purpose is accomplished, the power incidental 
 thereto may fairly be taken to cease. For instance, 
 a railway act requires a specific line of road to be 
 made between certain termini, and for this purpose 
 gives to the undertakers compulsory powers of pur- 
 chasing land, &c. ; those powers become extinct 
 the instant their object is accomplished by the com- 
 pletion of the contemplated line. If any alteration 
 therefore subsequently becomes requisite, there 
 must be an application by the undertakers to parlia- 
 ment for an extension of their powers ; (a;) on the 
 other hand, the statute may contemplate some con- 
 tinuing object, and one consequently which from 
 its very nature requires that the powers given by 
 the statute should be exercisable from time to 
 time, (y) Under this head would seem to fall what 
 is usually one of the main objects contemplated by 
 a railway act, viz. the maintenance of the railway 
 when constructed. In the absence accordingly of 
 any express limitation by statute, all powers inci- 
 dental to such object, such for instance as the power 
 of entering on adjoining lands, and taking the ne- 
 cessary materials for the repair of the railway, 
 would not seem to be exhausted by being once ex- 
 ercised, but to admit of being exercised afresh from 
 
 (i) Blakemore v. The Glamorganshire Canal Company, 1 M. 
 & K. 165. 
 
 (y) Salmon v. Randall, 3 M. & Cr. 440.
 
 132 Company as constituted under the Act. 
 
 time to time, as the company, acting on a reasonable 
 discretion, may see occasion, (z) 
 
 164. Srdly. Of Determination of Powers by 
 Lapse of Time. A railway act, in general, pre- 
 scribes a time within which the powers that it con- 
 fers must be exercised, and the works completed. If 
 this cannot be done within the specified time, the 
 company must apply to the legislature for an exten- 
 sion of their powers. But if the act of parliament 
 fix no time within which its provisions are to be 
 executed, they must then it seems be taken to con- 
 tinue till the company think proper to execute the 
 work ; and no limitation can be implied as to their 
 being executed within a reasonable time from the 
 passing of the act. (a) Possibly, however, a Court 
 of Equity might be willing to interfere, where there 
 should be shown to have been a continued inaction 
 on the part of the company, and that for so long a 
 period of time as to have misled parties into a se- 
 rious change of condition, and one to which any 
 fresh exercise of their powers on the part of the 
 company might be fatally prejudicial. As for in- 
 stance, if a railway company were to lie by for a 
 considerable time, and suffer the owners of pro- 
 perty (which their act empowered them to take) to 
 make improvements and erections, and incur ex- 
 penses on it, a Court of Equity might, under such 
 circumstances, be inclined to say that they should 
 be prevented from going on with their works at that 
 
 (:) Provision is now made for the extension of powers of rail- 
 way companies in certain cases by stat. 5 & 6 Vict. c. 55, ss. 14 
 and 15, see post. Cap. 6 and Appendix. 
 
 (a) Thicknesse v. The Lancaster Canal Company, 4 M. 6c W. 
 491.
 
 Powers of a Railway Company. 133 
 
 late period, and destroying that which would never 
 have been done but for their negligence, (ft) 
 
 III. — Of the Revival, Sfc, of Powers of Company. 
 
 165. We have in the next place to treat of the 
 revival, &c. of compulsory powers, supposing them to 
 have expired, &c. in any of the ways above specified. 
 This we have already seen can only be effected by 
 the act of the legislature. In treating of the ope- 
 ration of any such statute, there are three questions 
 that present themselves for consideration ; 1st, to 
 what extent are the powers of the old act revived by 
 the new ? 2ndly, how far such act operates on pro- 
 ceedings already taken under the the prior act ? Srdly, 
 what is the subject matter, to which the renewed 
 powers must be taken to apply ? 
 
 166. 1st. The new act is usually made to embody, 
 by way of reference, the powers given under the 
 old, only extended over a further period of time ; 
 the effect of this reference seems to be much the 
 same as if there had been an express enumeration 
 of such powers inserted in the later act. (c) An act 
 of parliament, establishing the Northern and East- 
 ern Railway Company, empowered them to con- 
 struct arches, &c. over streets, (c) and to erect 
 stations upon the railway and adjoining lands, and 
 generally to do all other things necessary or conve- 
 nient for the construction of the railway and other 
 works. A subsequent act empowered the company 
 to construct a station and depot in London ; and by 
 
 (6) Judgment of Lord Abinger, C. B. 4 M. & W. 491. 
 
 (c) The Alt. Gen. v. The Eastern Counties Railway Company, 
 and the Northern and Eastern Railway Company, 21 Law 
 Journ. Exch. 106; S. C. 10 M.& W. 263.
 
 134 Cowpany as constituted under the Act. 
 
 it it was enacted, that all the powers, provisions, &c. 
 of the old act should apply to the purchase of lands, 
 &c for such station, &c. It was held that, under 
 the above acts, the company were empowered to 
 arch over a public thoroughfare for the erection of 
 such station. 
 
 167. But, 2ndly, Is the new act to be deemed 
 retrospective in its operation, so as to enable the 
 company to carry into effect proceedings taken under 
 the old? This must depend upon the provisions of 
 the new act, and whether they are framed with a 
 reference to bygone transactions, so as to manifest 
 the intention of the legislature to give effect to the 
 same, (r/) An inquisition was taken under a rail- 
 way act that subsequently expired. A fresh act was 
 passed by which it was declared, that upon payment 
 of such sum of money as shoidd have been agreed 
 upon, or awarded by a jury in the manner prescribed 
 by the old act, &c., it should be lawful for the 
 company to enter, &c. It was held that this ena- 
 bled the company to act upon the old inquisition, 
 and that a payment of the amount assessed by the 
 jury after the passing of the new act was conse- 
 quently effectual to give them a title to the pro- 
 perty, {d) 
 
 168. The 3rd question respects the subject mat- 
 ter to which the revived powers must be taken to 
 apply. Where the company adhere throughout to 
 the original line of railway, no question can of 
 course arise upon this point. But, suppose that the 
 company adopt a line which is a deviation from the 
 
 (d) Doe d. Payne v. The Bristol and Exeter Railway Com- 
 pany, 2 Railway Cas. 75 ; S. C. 6 M. & W. 320.
 
 Powers of a Railway Company. 135 
 
 parliamentary line, (being empowered so to do by 
 their original act) and then take fresh powers under 
 a second act which gives them further time ; to 
 what, it may be asked, do those enlarged powers 
 apply ; to the original, or to the substituted line ? 
 Looking at the state of facts existing at the date of 
 the second act, the only reasonable construction is 
 to hold them to apply to the latter, since it is im- 
 possible to suppose that the legislature could mean 
 to grant or the company to take new powers over a 
 line, which they have abandoned, and no powers 
 over the line, which they are supposed to have 
 adopted in lieu of their original line, (e) But sup- 
 pose that the act, in according the company a further 
 extension of their powers, prohibits any further de- 
 viation after the period limited by the first act, the 
 position of the company is so far altered thereby, 
 that, at the expiration of the period to which their 
 power of deviation is limited, they are fixed to the 
 line which they have then selected, and can no 
 longer alter or vary it ; but on the line as so altered 
 under the powers of the original act, they are enti- 
 tled to extended powers for the time prescribed by 
 their new act.(e) They may, accordingly, after the 
 expiration of their original act, and the consequent 
 cesser of all further power of deviation, still take 
 compulsory possession of lands on the line to which 
 they have deviated at a preceding period, (e) 
 
 (e) River Dun Navigation Company v. North Midland Rail- 
 way Company, 1 Railway Cas. 135.
 
 ( 136 ) 
 
 Sub-Sect. 3. — Of the Rights of a Railway Company. 
 
 I. Rights in general. 
 II. Rights in respect of particular Contracts, viz. 
 
 1 . For Purchase, &c. of Land. 
 
 2. For Performance of Works. 
 
 169. I. Rights in general. From the notice of the 
 powers of a railway company, we are naturally led 
 to an examination of the rights incidental to the ex- 
 ercise of those powers. 
 
 A railway company, we have seen, is capable, to 
 a certain extent, of taking and enjoying property, 
 both real and personal. Where, in pursuance of 
 this power, they acquire any kind of property, they 
 become entitled to all the ordinary privileges of 
 ownership, subject, of course, to such restrictions as 
 are engrafted thereon either by their particular act, 
 or by the general acts relating to railways, (f) 
 
 170. So likewise a railway company is capable of 
 contracting and being contracted with, so far as is 
 necessary for the attainment of the ends of its insti- 
 tution, and under certain restrictions as to the form 
 of the contract. 
 
 These restrictions are twofold : first, the contract 
 must be made with the company in its politic capa- 
 city ; and secondly, it must either be under the 
 common seal of the company, or under the hands of 
 the requisite number of directors. Contracts, how- 
 ever, very frequently occurring or too insignificant 
 to be worth the trouble of affixing the common seal, 
 
 (/) See as to these acts, Cap. 6, post.
 
 Rights of a Railway Company. 137 
 
 or which fall within the very scope and purpose of 
 the company's incorporation, would seem to con- 
 stitute established exceptions to the above rule, {g) 
 so far, that is to say, as it regards the necessity of 
 a contract being concluded under the common seal 
 of the company : and although, in the first instance, 
 a contract be wanting in the above requisites, and 
 so cannot operate as the contract of the body corpo- 
 rate, still, if a subsequent recognition and adoption 
 of the contract can be shown on the part of the cor- 
 poration, such as renders it binding on them, they 
 become in their turn entitled to claim the perform- 
 ance of it from the other side. (/«) So where the 
 contract is executed by the company, and the 
 other party in consequence receives the full consi- 
 deration, (i) 
 
 171. Supposing then that, in the exercise of the 
 above power, the company concludes any contract, 
 it is, generally speaking, subject to the like rules of 
 construction, and productive of similar results as the 
 contract of any ordinary person ; this may be in- 
 stanced by the consideration of one or two particular 
 classes of contracts more particularly appropriate to 
 the objects of a railway company and the purposes 
 of their incorporation, and therefore such as they are 
 
 (g) Beverley v. Lincoln Gas Light and Coke Company, 6 A. 
 & E. 829 ; 5. C. 2 N. & P. 283 ; Church v. Imperial Gas Light 
 and Coke Company, 6 A. & E. 846 ; S. C. 3 N. & P. 35 ; Arnold 
 V. Mayor of Pool, 4 M. & Gr. 860; Fishmongers' Company v. 
 Robertson, 5 M. & Gr. 131, and cases there cited. Hall v. 
 Mayor, S^c. of Swansea, 5 A. & E. N. S. 526. 
 
 (h) London and Birmingham Railway Company v. Winter, 
 1 Cr. & Ph. 57. 
 
 (i) Fishmongers' Company v. Robertson, 5 M. & Gr. 131.
 
 138 Company as constituted under the Act, 
 
 perpetually called on to conclude, viz. contracts for 
 the purchase, &c. of land, and for the performance 
 of works. 
 
 172. II. Rights in respect, 1st, Of Contracts 
 FOR THE Purchase, &c. of Land. Suppose that a 
 railway company enter into an agreement for the 
 purchase of land, and that they perform their part 
 of the agreement, they may insist on a specific per- 
 formance of the contract by the opposite party. (A") 
 If the agreement is purposely framed so as to ex- 
 clude certain points which form the subject of a 
 prior understanding between the contracting parties, 
 this cannot, it seems, operate to defeat the contract, 
 nor, by consequence, be a reason for a court of equity 
 refusing a specific performance thereof, though it 
 might have this effect, viz. that the court would 
 not decree a specific performance without taking 
 care that the other party should have the benefit of 
 such an understanding. (A-) Accordingly, on the 
 company undertaking to perform, what was thus 
 understood, they may claim to have a specific per- 
 formance of the contract decreed immediately. 
 
 Even though such a contract may not be binding 
 on the company in the first instance, having been 
 entered into by an agent of the company not au- 
 thorized under their common seal, still, if they adopt 
 and make it their own by acting upon it, (as for 
 instance, by taking possession of the land forming 
 the subject of such contract, and making a railway 
 over it,) they become entitled to have it specifically 
 performed in their favour. (A) 
 
 (fc) London and Birmingham Railway Company v. Winter, 
 1 Cr.& Ph. 57.
 
 Rights of a Railway Company. 139 
 
 173. Sale of surplus land. We have seen that a 
 railway company are in general empowered by their 
 act to sell surplus lands, first offering them to the 
 owners of the adjoining lands ; supposing then that 
 they enter into a contract for the sale of such lands, 
 after having first duly offered them to the parties 
 entitled to the right of pre-emption, who decline 
 the purchase, they may clearly insist on a specific 
 performance of such contract by the purchaser ; and 
 even though the offer is not made and declined till 
 after the contract is entered into, the purchaser is 
 still bound to complete his contract, and the com- 
 pany accordingly may enforce a specific perform- 
 ance of the same, though they are not, it seems, 
 under such circumstances, entitled to the costs of 
 the suit. (/) 
 
 174. 2dly. Of Contracts for the Performance 
 OF Works ; and herein, 1st, of the general effect of 
 such contracts ; 2ndly, of some particular stipula- 
 tions usually introduced into the same. 
 
 175. 1st. Of the general effect of such contracts. 
 These contracts are usually entered into by ad- 
 vertisement and tender. A party who agrees in 
 this manner to take a contract is absolutely bound 
 by the terms of it, and cannot, because he after- 
 wards finds it disadvantageous, turn round upon the 
 company and claim to be relieved from it; (m) this, 
 of course, supposes that there has been perfect good 
 faith on the part of the company, since if they could 
 be fixed with fraud or misrepresentation, or with 
 
 (/) Londnn and Greenwich llailway Company v. Goodchild, 
 22 Law Journ. Ch. 224 ; S. C. 3 Railway Cas. 507. 
 
 (m) Ranger v. The Great Western Railway Company, 3 R. 
 Cas. 298.
 
 140 Company as constituted under the Act. 
 
 having otherwise taken any undue advantage of the 
 contractor in the course of the negociation, that 
 might give him a title to relief. The evidence, howr- 
 ever, in support of a charge of fraud must be clear 
 and cogent, and it is not enough for the contractor 
 simply to show that the statements of the company 
 touching the nature of the work, &c. conveyed in- 
 adequate information, where he might, by reason- 
 able diligence and inquiry himself, have acquired 
 the necessary information, and the terms of the 
 contract made it expressly incumbent on him to do 
 so. (w) 
 
 176. Where such a contract contains conditions 
 precedent to be performed on the part of the com- 
 pany, the latter, to give themselves a right under 
 such contract, to complain of the conduct of the 
 other party, must show a performance of those (o) 
 conditions ; though it is otherwise where the cove- 
 nants on either side are independent. (o) The proper 
 test by wliich to determine whether the covenants 
 in a given case are dependent or independent, is 
 the intention of the parties, as collected from the 
 entire instrument, (o) 
 
 (n) Ranger v. The Great Western Railway Company, 3 R. 
 Cas. 298. 
 
 (o) M'Intosh V. Midland Counties Railway Company, 23 Law 
 J., Exchequer, 338. The action was founded on two deeds of 
 covenant, by the first of which, after various recitals, it was 
 witnessed that in consideration of the sum of £258,629 10s. 6d. 
 agreed to be paid by the defendants, the plaintiff undertook 
 to complete a certain railway from a point in the borough of 
 Leicester to its junction with the Birmingham Railway at 
 Rugby. By a second indenture of covenant, dated 23rd March, 
 1839, after reciting, among other things, that the defendants 
 were desirous that the permanent way should be completed on
 
 Rights of a Railway Comjiany. 141 
 
 177. 2dly. Of certain particular stipulations usually 
 introduced into the class of contracts under consider a - 
 
 or before the 1st of June, 1840, so that the railway might be 
 opened for the use of the public on that day, and that the plaintiff 
 had agreed to expedite the last mentioned work, and also to lay 
 and complete the permanent line of railway, so that the whole 
 line of railway might be opened to the public on the 1st of June, 
 1840 ; and also to maintain and keep in repair such permanent 
 line of railway for such time as therein mentioned, in considera- 
 tion of the defendants paying hira the further sum of £15,000 as 
 a further consideration for the work in the first contract, and 
 for such expedition and completing the same as aforesaid, it was 
 witnessed that in pursuance of that agreement, the defendant 
 undertook that he, being allowed to make such further side cut- 
 tings and spoil banks, and being found and provided with 
 such rails, chairs, blocks, sleepers, and spikes for temporary 
 and permanent use, as therein after mentioned, should and would 
 on or before the 1st June, 1840, well and substantially, and 
 in a good and workmanlike manner, make and complete in all 
 things the said portion of the said railway in the original contract 
 contracted and agreed to be made by him. The declaration then 
 specified how the railway was to be completed on or before the 1st 
 of June, and then went on to set forth certain covenants and agree- 
 ments by the company with the plaintiff, that they would supply 
 the different articles, the rails, spikes, chairs and other materials 
 on given days and in given proportions ; and then came a proviso 
 contained in the second indenture to the following effect : That in 
 case the defendant should not complete the whole of the railway 
 and works on or before the 1st of June, 1840, so as that the said 
 railway might be capable of being opened by the said company 
 for the use of the public on that day, the defendant should, on 
 demand, pay to the said company the sum of £300 for the 1st of 
 June, and the like sum for every succeeding day, Sundays only 
 excepted, until the whole of the said railway should have been 
 completed and delivered over to the said company capable of 
 being opened by them. It was proved that the plaintiff did not 
 finish the railway until twenty-four days after the 1st of June, 
 but that the defendants had not furniahed him with all the rails,
 
 142 Com'pany as constituted under the Act, 
 
 t'lon. The stipulations alluded to are certain ones 
 intended to secure to the company the necessary 
 authority and control over the contractor. They 
 may be classed under two heads : 1st. Such as 
 constitute the company's own agent judge of the 
 quality or quantity of all works done under the 
 contract ;(p) and 2ndly. Stipulations for penalties. 
 First, then, as to the validity of the former kind of 
 stipulations ; and second, as to their general effect 
 and operation. 
 
 178. (1.) Validity of former class of stipidations. 
 Stipulations of the above kind, by which a certain 
 degree of power or authority over the contractor 
 is given to the engineer, cannot be regarded as 
 fraudulent or void on any general principles of law. 
 The safety of the public imperatively requires that 
 railways should be properly constructed, and for 
 this there can be no security without they are con- 
 structed under the superintendence and according 
 to the judgment of some scientific person such as 
 the engineer of a railway company may fairly be 
 expected to be. {q) Assuming such stipulations to 
 be in themselves valid, the additional fact of the 
 engineer being a shareholder in the company cannot, 
 it seems, be taken to make them invalid, it being 
 
 chairs, &c. The fair construction of the second indenture was 
 held to be that the covenants were independent, and that the 
 furnishing of the rails, chairs, &c., by the company was not a 
 condition precedent to their right to deduct the stipulated sum. 
 
 (p) For an instance of such a stipulation, see Ranger v. The 
 Great Western Railway Company, 1 R. Cas. 1 ; S.C.3 R.Cas. 
 298. 
 
 (^) Ranger v. The Great Western Railway Company. 3 R. 
 Cas. 298, judgment of Vice-Chancellor.
 
 Rights of a Railway Company. 143 
 
 matter of general notoriety that the officers of bodies 
 like railway companies are shareholders, (r) 
 
 179. (2.) As to the effect of the stipulations in 
 question. As far as regards the quality of the work, 
 the authority that such a clause confers on the en- 
 gineer, &c. of the company is, as it seems, complete 
 and absolute ; in every question therefore whether 
 the work has been properly done or not, the con- 
 tractor is bound by the opinion of the engineer, (r) 
 But it is otherwise where the engineer is constituted 
 the judge not simply of the quality of the work, 
 but of what is dry matter of measurement and 
 calculation ; as for instance, what quantity of work 
 has been done, and what payments ouglit to have 
 been made for it. In such a case, if there are 
 reasonable grounds for so doing, it is open to the 
 contractor to question the correctness of the mea- 
 surements and calculations made by the engineer, (r) 
 
 180. 2ndly. Of stipulations for penalties; and 
 herein 1st, of the validity ; 2nd, of the general effect 
 and operation of such stipulations. 
 
 (1.) The general validity of such stipulations can- 
 not it seems be impugned ; and therefore, in the ab- 
 sence at least of fraud, they must be taken to be 
 binding on the contractor. No relief consequently 
 can be had against such stipulations where the cir- 
 cumstances of the case show the company to have 
 enforced them, not from any improper motives, but 
 solely as a necessary matter of self defence and pre- 
 caution against those defaults of the contractor, 
 which the stipulations in question were intended to 
 meet ; such, for instance, as increasing slowness and 
 
 (')•) Ranger v. The Great Western Railway Company, 3 Rail. 
 Cas. 321, judgment of Vice-Chancellor.
 
 144 Company as constituted under the Act. 
 
 delay, neglect, disobedience of the just orders of 
 the company's engineer, and the like, (s) 
 
 181. Where a written contract embodies stipula- 
 tions of the above nature, and it is agreed that the 
 provisions of such contract shall, in all respects, as 
 far as they are applicable, extend to an unwritten 
 contract, the stipulations in question must, it seems, 
 be taken to be imported into and form part of the 
 unwritten contract, (s) 
 
 182. By the stipulations in question the company 
 in general endeavour to protect themselves not 
 merely against the delays, &;c. and other personal 
 defaults of the contractor, but likewise against the 
 chances of h\s failure or becoming embarrassed in his 
 circumstances. How far accordingly provisions of 
 this kind can be so framed as to afford to a railway 
 company the desired protection, is a question that 
 must necessarily be determined. A provision by 
 which the property should be made to pass to the 
 company at once, in case of the contractor's insol- 
 vency or bankruptcy, would, to say the least of it, 
 be open to great question, as militating against the 
 policy of the bankrupt and insolvent acts. (0 If, to 
 avoid this objection, the clause is framed so as to 
 make the property's vesting in the company to de- 
 pend not simply on the bankruptcy or insolvency of 
 the contractor, but on an election to be made by the 
 company after default by the contractor in neglect- 
 ing to proceed with the works notwithstanding due 
 
 (s) Ranger v. The Great Western Railway Company, 3 R. 
 Cas. 298. 
 
 (t) See judgment of Lord Denman, C. J. in Rmtch v. The 
 Great Western Railway Ccmpanv, 2 Railway Cas. 505 ; .S. C. 
 1 A. & E., N. S. 51 J 4 Per. & D. 686.
 
 Rights of a Railway Company. 145 
 
 notice to that effect ; this difficulty is let in, (setting 
 aside all question as to the legal validity of such 
 clauses in their first formation) viz. that before the 
 notice is given, or whilst it is still running, and, con- 
 sequently, before the forfeiture, if it may be so called, 
 has accrued, the contractor may become bankrupt, 
 and then the plant, materials, &c. intended to be for- 
 feited cease to be the bankrupt's by the title of the 
 assignees intervening ; an hypothesis upon which 
 the clauses in question must clearly become inope- 
 rative, the subject matter of forfeiture being re- 
 moved, (m) The objection however on the score of 
 the bankruptcy or insolvency laws may be avoided, 
 if, instead of an absolute forfeiture and vesting of 
 the property in tliemselves, the company are content 
 to stipulate for a simple lien upon, or right to use 
 the tools, materials, &c. of the contractor, and this 
 without any professed reference to the event of bank- 
 ruptcy, &c. Such a stipulation bears nothing un- 
 iawfui on the face of it, and indeed is one into which 
 the contractor may lawfidly enter, assuming, that is 
 to say, his solvency, and that bankruptcy is not in 
 his contemplation, and that he is the owner of the 
 chattels to be affected by the deed, (.x) 
 
 Supposing therefore the contractor subsequently 
 becomes bankrupt, still the assignees take the pro- 
 perty subject to the above stipulation, and cannot 
 consequently either reclaim property which the com- 
 pany has already applied to the purposes contem- 
 
 (ii) llinich. V. The Great Weitern Railway Company, ubi 
 supra. 
 
 ( i) flawihoi-n v. Tlie Newcastle-npon-Tyne and North Shields 
 B.(iilway Company, 2 Railway Cas. 299; .5'. C. 3 A. .Sc E. 
 A.S. 734, n.(a). 
 
 H
 
 1 46 Company as constituted under the Act. 
 
 plated by such stipulation, nor resist any such ap- 
 olication in future, {y) 
 
 183. It has indeed been attempted to impugn the 
 validity even of clauses framed in the manner last 
 suggested on another ground ; viz. that they tend 
 to make the contractor the reputed owner of the 
 goods in question. This objection can of course 
 only hit the case where at the time of the bank- 
 ruptcy no steps have been taken by the company 
 to enforce their rights under the stipulation in 
 question. x\nd even in this case the answer is ob- 
 vious, viz. that such stipulation per se conveys no 
 property to the company, and that therefore the 
 contractor and not the company must be regarded 
 as the true owner, (z/) 
 
 184. (2) Of the import of such stipulations. This, 
 from the very nature of such stipulations, which are 
 clearly matter of express bargain, must depend on 
 the particular terms in which they are couched. For 
 instance, the forfeiture may be made to extend to 
 all the materials, implements, &c. used about the. 
 works, or it may be confined to those within certain 
 local limits, (z) A railway company entered into a 
 contract with certain builders for the construction of 
 a bridge. It was part of the terms of the contract 
 that if in the opinion of the company's architect the 
 contractors did not proceed with sufficient speed, the 
 company might, on giving seven days' notice of their 
 intention, employ additional workmen, and use all the 
 implements, materials, &c. used about the works by 
 
 (y) See ante, p. 145, n.(z). 
 
 (z) Rouch V. The Great Western Railway Company, ubi 
 supra ; Hawthorn v. The Newcastle-upoii'Tyne and North Shields 
 Railway Company, ubi supra.
 
 Rights of a Railway Company. 147 
 
 the contractors. It was held that under this stipu- 
 lation, supposing the contemplated contingency 
 should arise, and the seven days' notice be given, 
 the company would clearly be at liberty to make 
 use of all the implements and materials then in use 
 bv the contractors in and about the works, whether 
 they continued to be on this or that precise spot. 
 The same contract further provided that the com- 
 pany should have a lien on such implements, mate- 
 rials, &c. as might for the time being be in or upon 
 the lands and grounds whereon the bridge was to 
 be built. It was held that under the above stipula- 
 tions the company acquired a lien in the nature of a 
 shifting lien, attaching on materials, &c. as they 
 were brought upon the ground, and lost if they were 
 removed elsewhere not wrongfully, though the loss 
 of the lien on the articles so removed did not affect 
 it as to what remained, or which from time to time 
 might be brought on ; and that as to the places 
 where the lien would attach, it was not to be limited 
 literally to the spot forming the site of the intended 
 bridge, but was to be taken to extend to all places 
 in wiiich the building of tlie bridge was in the 
 popular sense carrying on, if such place v.'as in the 
 possession of the company ; that the lien accordingly 
 attaclied on materials, &c. deposited on the line of 
 the railway, and also on land adjoining the railway 
 and in the possession of the company, but not on 
 materials, &c. lying on a temporary railway made 
 by the builders over lands not belonging to the com- 
 pany for the convenience of conveying materials, 
 nor on the materials of the temporary railway itself, 
 nor again on a crane erected at the extremity of 
 such temporary railway, though the latter classes of 
 H 2
 
 148 Company as constituted under the Act. 
 
 articles the company, at the expiration of the notice 
 above alluded to, had a right to retain and use about 
 the work, (a) 
 
 Sub-Sect. 4. — Of the Duties and Obligations of a 
 Railway Company. 
 
 18 J. It is proposed in the present section to treat 
 of the duties and obligations of railway companies. 
 These may be considered under two heads ; first, 
 such as are immediately cast upon them by their 
 statute of incorporation, whether in express terms 
 or by implication ; and secondly, such as mediately 
 flow from the same source, being the result of the 
 position in which the company are placed by acting 
 upon the powers of their statute. 
 
 186. 1st. Of Duties immediately imposed by Sta- 
 tute. This species of duties admits of a threefold 
 division, according to the character of the parties to 
 whom they are due ; first, duties owing to the public ; 
 secondly, duties owing to that portion of the public, who 
 are the owners of the adjoining property ; thirdly, 
 duties owing at once to the public and to the individual 
 shareholders. First, then, as to the first class. 
 Acts of parliament, which, like railway or canal 
 acts, confer large and extensive powers for the 
 execution of public works, cannot be considered as 
 entailing no duties on those who obtain them, as 
 offering, in short, a mere boon, which the projected 
 company may accept or reject, or partially accept 
 and partially reject, at their sole will and pleasure. 
 
 (a) Hawthornv. The Newcastle-upon-Tyne and North Shields 
 Raihvay Company, ubi supra.
 
 Duties and Obligations of a Railway Company. 1 49 
 
 Such acts, on the contrary, as we have ah-eady had 
 occasion to observe, are regarded in the light of 
 contracts made by the legislature on behalf of every 
 person interested in any thing to be done under 
 them. Those consequently who come to parliament 
 to obtain them thei-eby in effect undertake that they 
 shall do and submit to whatever the legislature em- 
 powers and compels them to do ; (6) and this as 
 well with reference to the interests of the public as 
 to that of individuals. To apply these principles 
 more immediately to railway companies, inasmuch 
 as what the legislature usually contemplates in in- 
 corporating a company of this nature is the making 
 and maintaining of a line of railway between certain 
 given termini ; the duties in general imposed by 
 the law on such companies as incident to their crea- 
 tion can be no less than that of making and main- 
 taining the railway in the line contemplated by the 
 legislature. The circumstances under which such 
 acts are obtained greatly tend to corroborate this 
 view. Certain individuals go to parliament, and 
 apply for an act to make a railway. To induce the 
 legislature to accede to their application, and to 
 grant them the necessary powers, they represent 
 themselves to be capable of performing certain 
 works, and undertake to do so. It is upon the faith 
 of such representation and undertaking that they 
 obtain their act, and the great powers of occupying 
 land and raising money which it bestows. Thev 
 cannot after this be permitted to allege, by way of 
 
 (6) Blakemore v. The Glamorganshire Canal Navigation, 1 
 M. & K. 162; judgment of Lord Denman, C. J., in Reg.v, 
 Eastern Counties Railway Company, 1 R. Cas. 509 ; S. C. 2 R. 
 Cas. 260 ; 10 A. & E. 531 ; 2 Per. & D. 648.
 
 150 Company as constituted under the Act. 
 
 excuse for the non-performance of what is contem- 
 plated by the act, the difficulty or impossibility at- 
 tending the execution according to the prescribed 
 terms ; (since such difficulties, be they more or less, 
 should have been duly estimated by the undertakers 
 before they pledged themselves to the execution for 
 the sake of obtaining their act) ; or a regard to the 
 pecuniary interests of the company, the majority 
 being satisfied with the dividends already accruing, 
 and unwilling to risk a further expenditure ; neither 
 can they claim to exercise an unlimited option over 
 the works, abandoning one part and executing ano- 
 ther at their will and pleasure. By their acceptance 
 at the hands of the legislature of the very large and 
 extensive powers ordinarily conferred by a railway 
 act, for what cannot but be regarded as public pur- 
 poses, they become clothed with the character of 
 public trustees ; and as such, in case of any neglect 
 or failure to exercise such powers in compliance 
 with such purposes, they may be compelled to do so 
 within reasonable limits by a court of justice, (c) 
 Accordingly, where the conduct of a company is 
 such as evinces that they have no bona fide intention 
 of completing their works according to the requisites 
 of their act, a mandamus, it seems, will lie to them 
 to enforce their taking the necessary steps for that 
 purpose. As for instance, if their works appear to 
 be in a great state of forwardness on one part of the 
 line, while nothing is doing on another, even as 
 respects the preliminary measure of purchasing the 
 necessary land {d). In order, however, to succeed in 
 
 (c) Judgment of Lord Denman, C. J., in Reg. v. EasUrn 
 Counties Railway Company, ubi supra. 
 
 (d) Reg. V. The Eastern Counties Railway Company, ubi supra.
 
 Duties and Obligations of a Railway Company. 151 
 
 an application for a mandamus, it is not enough for 
 the prosecutors to state facts, which, though they 
 raise a suspicion, yet fall short of proof that the com- 
 pany has abandoned all intention of completing their 
 line according to the meaning of the act. As for 
 instance, where the gravamen of the complaint in 
 effect amounted simply to this, that the company 
 had refused to purchase lands at the time a par- 
 ticular shareholder had requested them to do so. (e) 
 
 187. Although a railway company cannot in ge- 
 neral excuse itself from the performance of the 
 works contemplated by its act of incorporation, on 
 the score of the insufficiency of its funds, or on 
 account of the difficulty or impossibility attending 
 the execution of the design, still if it appeared that 
 the company was restrained from proceeding by 
 the injunction of a court of equity, it is conceived 
 that this would be held by a court of law a suffi- 
 cient answer to any application to compel the fur- 
 ther prosecution of its works. 
 
 188. A further branch of the same class of duties 
 is that of maintaining the railway. By this must 
 be understood, if not the absolutely (/) repairing of 
 
 In Reg. V. Great 'North of England Railway Company a rule 
 nisi was obtained for a mandamus to the company to compel them 
 to complete their line, they having done little or nothing to carry 
 out a particular portion of it; but the applicant having subse- 
 quently obtained his object under an act of parliament, no further 
 proceedings were taken in the case. Great difficulty, it may be 
 remarked, was felt in the case, as to whether the applicant was 
 entitled to a mandamus at all, he having no property on the 
 line of the railway, but only in its vicinity. — November 
 20th, 1841. 
 
 (e) Ibid. 
 
 {J) In Reg. V. Bristol Dock Company, 2 A. & E. N. S. 64,
 
 152 Company as constituted under the Act. 
 
 the line of railway, at any rale the keeping it in such 
 a state as to all essentials, that the public may have 
 the use of it as a railway. Any positive act accord- 
 ingly on the part of the company, which should 
 tend directly to the destruction of the railway, and 
 the depriving the public of the use of it as such, 
 would clearly be an infringement of this duty. Ac- 
 cordingly, where a railway company took up a part 
 of the railway, a mandamus was issued to compel 
 them to reinstate and lay it down again, (rf) 
 
 189. Another and closely analogous branch of 
 duty, is that which relates to the keeping the line of 
 railnay free from impediments. The company con- 
 struct the railway for their own profit, and open it 
 to the public upon the payment of tolls. The 
 common law in such a case imposes a duty on the 
 company, not perhaps absolutely to free it from 
 obstruction, but to take reasonable care that all who 
 shall choose to use it may do so without danger to 
 their lives or property, (e) 
 
 190. The second class of the above duties are 
 those which are imposed by the legislature in favour 
 of the proprietors of the adjoining lands. Such is the 
 duty of fencing off the railway from the adjoining 
 lands, of making (/) proper communications across 
 
 the court held the dock company liable to repair their works, 
 the statute incorporating the company expressly reqtiiring the 
 company to make and maintain the same. 
 
 (rf ) Hex V. The Severn and Wye Railway Company, 2 B. & 
 Aid. 646. 
 
 (e) See judgment of Tindal, C. J., in The Company of Pro- 
 prietors of the Lancaster Canal Navigation v. Parnahy and 
 others, 1 Railway Cas. 712 ; S. C. 11 A. & E. 223 ; 3 Per. & 
 D. 162. 
 
 (/) As to the making of proper communications, see ante, p.
 
 Duties and Ohligations of a Railway Company. 153 
 
 the railway for the accommodation of such lands, 
 and making and maintaining adequate drains to 
 carry off the water from the same, and the like. 
 
 191. The third class of the above duties are those 
 which the corporate body owe at once to the public and 
 to the individual shareholders. Such is the duty of 
 doing nothing in their corporate capacity but what 
 they are authorized to do by the legislature ; but 
 in all things adhering faithfully to the objects of 
 their incorporation. Should a railway company 
 therefore attempt to employ their corporate powers, 
 funds, credit, &c. for the accomplishment of pur- 
 poses not within the scope of their institution, this 
 would be such a clear violation of duty on their 
 part, as to subject them to be restrained by a 
 court of equity ,'(g-) even on the application of a 
 single shareholder. But although a court of equity 
 would restrain a railway company from thus acting 
 contrary to the laws of their existing constitution, 
 yet it would not, it seems, interfere to prevent such 
 a body from applying in their coporate capacity to 
 parliament, and from using their corporate seal and 
 resources to obtain the sanction of the legislature 
 to the remodelling of their constitution, or to a ma- 
 terial alteration and extension of their objects and 
 powers, the right to take proceedings in parliament 
 in the way suggested being incident to a corporate 
 body such as that under consideration. (/«) 
 
 121,etseq.,and post, Cap. 6. As to provisions of Railways Clauses 
 Consolidation Act, 8 Vict. c. 20, on the same point, see act, s, 68 
 to 75, post, App. 
 
 (g) Ware v. The Grand Junction Water Works Company, 2 
 Russ. & M. 483. 
 
 (h) Ibid. 
 
 H 5
 
 154 Company as constituted under the Act. 
 
 192. Under this same head may likewise be 
 reckoned the duty of making calls and likewise of 
 enforcing payment of calls already made, when the 
 state of the company's funds is such as requires the 
 exercise of the power with which the legislature has 
 entrusted them for that purpose. (i) 
 
 1 93. Next, Of the Second Class of Duties, viz. 
 such as are the result not so much of the company's 
 act of incorporation, as of the new relations incidental 
 thereto, viz. their duties as owners of the property, 
 whether real or personal, which they are compelled, &c. 
 to purchase for the purposes of the railway. Viewed 
 then as owners of property, a railway company are 
 liable to the like obligations as any ordinary pro- 
 prietor, saving of course so far as is otherwise pro- 
 vided for by their statute of incorporation. They 
 are bound therefore to abstain from the doing any 
 thing on, or making any use of, their own land, 
 which may prejudice their neighbour. And the 
 same rule applies in regard of their employment of 
 things moveable. 
 
 Sub-Sect. 5. — Of the Burthens of a Railway 
 Company, (k) 
 
 194. A railway company, viewed as owners or 
 occupiers of the line ot railway, ai'e liable to all 
 rates, charges and other burthens ordinarily inci- 
 dental to the ownership or occupation of realty, so 
 far, that is to say, as is not otherwise provided tor 
 
 (i) See Reg. v. Victoria Park Company, 1 A. & E. N. S.288. 
 
 (/() As to liability of companies under Lands Clauses Con- 
 solidation Act, 8 Vict. c. 18, to make good land tax and poor's 
 rate, until works completed and assessed thereto, see act, s. 133, 
 post, App.
 
 Of the Burthens of a Railway Company. 155 
 
 by their act of incorporation. A railway company, 
 accordingly, in the occupation of their own line of 
 railway, are liable to be rated for the same to the 
 relief of the poor. This renders necessary an in- 
 quiry into the principle of rating railways, and herein, 
 first, of the general principle ; secondly, of the varia- 
 tions engrafted on it by particular statutes. The 
 former question includes two points : — 
 
 First, what is to be deemed subject-matter of 
 rate, and to be included accordingly in the estimate 
 of rateable value ; and, secondly, upon what principle 
 the rate is to be apportioned among the different 
 portions of the line lying in different parishes. 
 
 195. General Principle of Ratiis'g. — First. 
 What to he brought into rate. A railway company then 
 is rateable upon the net annual value of the railway, 
 that is to say, at such an amount as a tenant from 
 year to year might fairly be expected to pay for the 
 railway by way of net rent, assuming him to have 
 the same power of using the railway, and the like 
 privileges and advantages as the company, (l) 
 
 Supposing, therefore, that the land and buildings 
 of the company become themselvesmore valuable and 
 capable of commanding a higher rent in consequence 
 of the facilitj' afforded by the occupation of them to 
 the carrying on of a lucrative trade and earning the 
 profits on the fares, in whatever proportion this is 
 the case, the rate ought to be raised accordingly, (l) 
 Hence it would seem a proper mode for calculating 
 
 (0 Beg.v. Londim ai)d Snuth Western Railway Company, 2 
 R. Cas. 629 ; S. C. I A. & E. N. S. 558 ; 2 G. & D. 49 ; 
 R'g. V. Grand Junction Railway Company, 22 Law J., Mag. 
 Cas. 94: S.C. 4 A. & E. N. S. 18; 4 Railw. Cas. 1.
 
 156 Company as constituted under the Act. 
 
 the rateable value of railway property, first to take 
 the gross receipts of the company, and then to deduct 
 therefrom a per centage (the amount of which it 
 belongs to the sessions to determine), first, for the 
 interest of capital actually invested by the company 
 in moveable carrying stock ; secondly, for tenants' 
 profits and the fair profits of trade ; thirdly, for the 
 depreciation of stock beyond ordinary annual re- 
 pairs, Arc; fourthly, for the annual costs of conduct- 
 ing the business, maintenance of way, &c. and other 
 disbursements of the company as railway owners 
 and carriers ; and, lastly, a mileage for the renewal 
 and reproduction of those portions of the subject- 
 matter of the rate which are of a perishable nature, 
 such as chairs, sleepers, &c.(;?j) As these deduc- 
 tions, taken together, seem to exhaust whatever is 
 properly referable to the trade, as distinguished from 
 the increased value which that trade imparts to the 
 land, the residue may fairly be taken to represent 
 the value of the occupation, which as we have seen 
 constitutes the proper subject of the rate. 
 
 196. In making the dbove calculation, no allow- 
 ance, it is to be observed, has been made for good 
 will, neither it seems can any such allowance be 
 claimed, (wi) 
 
 197. It makes no difference in the principle on 
 which the rate is to be imposed, whether the com- 
 pany is in the exclusive enjoyment ol the line of 
 railway and has a monopoly of the traffic thereon, 
 or it is shared in by others, of whom some simply 
 make use of the railway and pay the tolls imposed 
 
 (m) Reg. V. Grand Junction Railway Company, ubi supra. 
 Where the stations, &c., are rated separately, the annual value 
 of these must also be deducted. See also Reg. v. Great Western 
 Railway Company, 4 Railw. Cas. 26, and post, App.
 
 Of the Burthens of a Railway Company. 157 
 
 by the company's act of incorporation, while others 
 in addition hire of the company steam power and 
 make use of its landing places, &c., paying an ad- 
 ditional compensation for the same.(m) In both 
 cases the inquiry is the same : what is the value of 
 the occupation, from whatever source derived ; whe- 
 ther, as in the former case, simply from the carriage 
 of goods and passengers; or, as in the latter, both 
 from that source and also in addition from allowing 
 others to carry goods and passengers along the line, 
 Szc. (n) In neither case can the profits of trade, 
 as such, be brought into the rate ; but if the ability 
 to carry on, or to permit others to carry on, a gainful 
 trade on the railway adds to the value of the railway 
 and works, that value cannot be excluded, merely 
 because it is referable to the trade. (?2) 
 
 198. An argument adverse to this view of the rate- 
 ability of railways has indeed been attempted to be 
 drawn from the clauses usually inserted in railway 
 acts, directing under severe penalties an account of 
 tolls to be kept for the benefit of the overseers of 
 the poor ; a provision, it has been urged, which is 
 utterly without an object, unless the tolls alone ai'e 
 the fund with which the overseers have to do. Un- 
 questionably it must be allowed tliat the clauses in 
 question evidence an intention in the framers of the 
 act to limit the rateability of railways to the tolls 
 only ; and it is in order to eflectuate the working of 
 this mode of calculating the assessment of railway 
 property that they are inserted. But still there is 
 nothing in this strong enough to countervail the gene- 
 ral principles of law relative to the rating of realty, 
 
 (m) See ante, p. 155, n. {I). 
 
 (n) Reg. V. Grand Junction Uailway Compuny, ubi supra.
 
 158 Company as constituted under the Act. 
 
 or to prevent their application to the rating of the 
 property of a railway company in their occupation ; 
 considering more especially the nature of a railway 
 act, which in questions of intention must not be dealt 
 with exactly as if it were a public general act, but 
 rather as a mode of carrying into effect a bargain 
 between certain individuals and the public, (o) 
 
 199. Secondly. — As to the principle on which the 
 rate is to he distributed among the different portions 
 of the line lying in different parishes. As a general 
 rule then the subject-matter of the rate in any par- 
 ticular parish is the beneficial occupation of the land 
 there, and there cannot be drawn into the rate the 
 value of the occupation of buildings, &c. elsewhere ; 
 still as it is on the value in the parish, however oc- 
 casioned, that the rate is to be imposed, it cannot 
 be allowed to strike off any portion of such value, 
 because it would not have existed but for the occu- 
 pation of buildings, &c. elsewhere and in another 
 parish ; it exists and in the parish, and therefore 
 cannot escape the rate there, [p) 
 
 200. The value of the occuj)ation in the particular 
 parish being the proper subject of the rate in such 
 parish, it follows that, as a general rule, the proper 
 mode of apportioning the rate among the various 
 parishes along the line of railway is not by a mileage 
 division, which assumes the profits to arise equally 
 throughout the whole line, but according to the actual 
 earnings in each parish, (y) But if in a particular 
 
 (o) Reg. V. The London and South Western Railway Company, 
 ubi supra. 
 
 (p) Judgment of Lord Denman, C. J., in Reg. v. The London 
 and South IVeitern Railway Companij, ubi supra. 
 
 (v) ^^^S' ^' London and South Western Railway Company, 
 ubi supra.
 
 Of the Burthens of a Raihvay Company. 159 
 
 case both parties choose to agree on adopting the 
 former principle, it is of course open to them to do 
 so. (;•) 
 
 201. Secondly. Of Variations in Principle of 
 Rating by Statute. Instead of leaving a railway 
 under the operation of the general law, the legislature 
 may provide that it shall be rated upon a principle of 
 its own ; as, for instance, if an act were to direct that 
 the tolls should not be subject to rates, but that the 
 lands, buildings, &c. of the company should be rated 
 in the same proportion as the adjacent lands, &c., 
 were for the time being, and as the lands and 
 buildings of the company would have been rateable 
 in case they had continued in their former state, and 
 not been used for the purposes of the undertaking. 
 Under such a provision the property of the com- 
 pany ought, it seems, to be rated at the value which 
 the adjacent lands, &'c., bear at the time of the rate, 
 the intention of the legislature being not to exclude 
 all improvement in value, but simply the additional 
 value arising from the tolls, c^c. {s) 
 
 202. Tithe Rent-charge. In like manner the 
 company are liable to the payment of all tithe rent- 
 charges charged upon lands taken for the purposes 
 of a railway, and may be distrained on for the same 
 when they are suffered to fall in arrear. [t) 
 
 203. Where land enjoys an exemption from cer- 
 tain burdens by virtue of a particular statute, whe- 
 ther or not it loses that exemption by being con- 
 
 ('■) ^^S' v- Grand Junction Railway Company, 22 Law Jour. 
 Mag. Ca. 94 ; S. C.4 A.&c E. N. S. 18 ; 4 Railw. Cas. 1. 
 
 (s) Reg. V. The Mnnmnuthshire Canal Comiiani), 3 A. & E. 619. 
 
 (t) See remedy given in such case by statute 7 & 8 Vict. c. 
 85, sect. 22, Appendix.
 
 160 Company as constituted under the Act. 
 
 verted into a railway, must depend on the nature 
 and purport of the exemption ; viz. whether it is a 
 local exemption applying to the land itself, or whe- 
 ther it depends on the land retaining a particular 
 character, and therefore ceasing when the land loses 
 that character by being applied to the purposes of a 
 railway. 
 
 By a paving act all hereditaments within a pai- 
 ticular city were made liable to rates, except a mes- 
 suage or dwelling house, together with the barns, 
 stables, outhouses and grounds thei-eunto belonging, 
 situate, &c., and then in the occupation of S. T., 
 called B, Farm. A piece of land forming a portion 
 of those grounds having been taken by a railway 
 company, and a railway made over it, it was held 
 nevertheless not to lose its exemption from rateabi- 
 lity by thus ceasing to be occupied for farming pur- 
 poses, (it) 
 
 Sub-Sect. 6. — Of the Liabilities of a Raibvmj 
 Company. 
 
 I. Of Liabilities on Contracts. 
 II. Of Liabilites in Tort. 
 
 30L I. Of Uabililies on contracts. In deter- 
 mining the liability of a railway company upon a 
 contract, there are three points to be considered, 
 1st, whether the contract is one that the company 
 is competent to conclude ; 2nd, whether it is con- 
 cluded in such a manner as to operate as the con- 
 
 (u) Todd V. London and South Western Railway Compniiy, 
 8 Scott's N. R. 66 ; S. C. 7 M. & Gr. 366.
 
 Liabilities of a Railway Company. 161 
 
 tract of the company ; 3rd, what are its nature and 
 effects ? 
 
 The first point having been ah-eady fully con- 
 sidered in a former part of the work, (a) it is 
 proposed at once to pass to the consideration of the 
 second. 
 
 205. 2ndly, Thi-ough what organs, and with what 
 forms, a railway company must in general act, so that 
 what it does may operate as the public act of the 
 company, has been already considered, (i) From the 
 principles there laid down, it may easily be deduced 
 in what manner a contract must be concluded, to be 
 binding on the company. There are, however, 
 certain cases which may perhaps be considered as 
 constituting exceptions to the above rules, and 
 where a contract may still be enforced against a 
 company, though not concluded under the common 
 seal, or under the hands of the requisite number 
 of directors. These cases in general rest on neces- 
 sity, or on an urgent expediency amounting almost 
 to necessity ; as for instance, wherever to hold the 
 rule applicable would occasion great inconvenience, 
 or tend to defeat the object for which the corpora- 
 tion is created. Hence contracts of frequent occur- 
 rence, or such as are too insignificant to be worth 
 the trouble of affixing the common seal, &c., or 
 necessary to the very existence of the corporation, 
 or to the management of its corporate concerns, or 
 which fall within the very purpose and scope of its 
 incorporation, may perhaps be taken to constitute 
 established exceptions, (c) 
 
 (a) See ante, pp. 81, 82. 
 
 (b) See ante, p. 70, et seq. 
 
 (c) See ante, p. 137, n. (g).
 
 162 Company as constituted under the Act. 
 
 206. Although in the first instance a contract 
 wants any of the requisites above mentioned, and 
 so cannot operate as the contract of the corporate 
 body, still if a subsequent recognition and adoption 
 of such contract on the part of the corporate body 
 can be brought home to them, it becomes as much 
 binding upon them as if it had been originally con- 
 cluded by them in all due form, (c) 
 
 207. Upon a closely analogous principle, a con- 
 tract made by the projectors of a company before 
 the act of incorporation has been held binding on 
 the incorporated body, where the latter adopt it and 
 take the benefit of the consideration on which it is 
 made, {d) For although the company and the pro- 
 jectors cannot be identified, still it is clear that the 
 company are the successors to, and in the posses- 
 sion and enjoyment of, all that the projectors had 
 before. Standing then in the place of the pro- 
 jectors, and reaping the fruits of the arrangements 
 concluded by them, they cannot claim to repudiate 
 those arrangements. This principle has been 
 extensively recognized in the case of one parti- 
 cular class of contracts, viz. contracts for the with- 
 drawing of opposition to railway bills in parliament. 
 The projectors of a railway come to parliament to 
 obtain the necessary powers for the execution of 
 their purpose ; they find the success of their scheme 
 threatened by the opposition of parties whose in- 
 terests the intended line of railway is calculated to 
 affect. To buy off this opposition, they enter into 
 
 (c) Be Grave, v. Mayor, &;c. of Monmouth, 4 C. & P. Ill ; 
 see also ante, p. 137, and Foss v. Hurbotlle, 2 Hare, 494. 
 
 (rf) When company liable for expenses incurred in obtaining 
 act, see post, Cap. 7, Part I. s. 3.
 
 Liabilities of a Railway Company. 163 
 
 certain arrangements with the opposing parties, on 
 the faith of which the opposition is withdrawn, and 
 the projectors are thus enabled to obtain their act, 
 and all the extensive powers which it confers ; 
 although there is here no contract binding on the 
 company in law, still they cannot exercise the powers 
 given by parliament to the projectors in their cor- 
 porate capacity, and at the same time refuse to 
 comply with the terms upon the faith of which they 
 were permitted to obtain such powers. They can- 
 not claim to stand in the place of the projectors, 
 and reap the benefit of the arrangements the latter 
 have entered into, and at the same time repudiate 
 those arrangements, (e) 
 
 208. To give a party an equity of this kind 
 against a railway company, several things must 
 concur ; 1st, there must be an agreement ; 2dly, 
 the projectors must receive the benefit of the agree- 
 ment ; and lastly, the thing bargained for by the 
 opposite party must be a collateral advantage, and 
 not any thing in direct opposition to the act of parlia- 
 ment. 
 
 209. First then, in general an agreementhetvceen 
 the parties is necessary to lay a foundation for the 
 above equity. An assent to the passing of the bill 
 given upon certain conditions is not sufficient for 
 this purpose ; as for instance, where the trustees of 
 a turnpike road assent to the passing of a bill for a 
 railway, on the condition that the railway shall 
 pass over the road at a sufficient elevation, and that 
 
 (e) Doo V. The London and Croydon Railway Company, 1 
 Railw. Cas. 259 ; Edwards v. Grand Junction Railwaij Com- 
 pany, 1 Myl. & Cr. 650; S. C. 7 Sim. 337; Stanleii v. Chester 
 and Birkenhead Railway Company, 3 Myl. & Cr. 773 ; S. C. 
 1 Railw. Cas. 58 j 9 Sim. 264.
 
 164 Company as constituted under the Act. 
 
 the road shall not be lowered or otherwise pre- 
 judiced. There is nothing in this to prevent the 
 parties so assenting from opposing the bill, for the 
 purpose at least of procuring a clause to be intro- 
 duced into the bill to the effect of the modification 
 upon which they insist. If they do not choose to do 
 this, and the legislature, upon a view of the terms of 
 the assent, think it right to pass the bill without 
 insisting on a compliance with such terms, a court 
 of equity can look only to the act of parliament, and 
 cannot consequently restrain the company from enfor- 
 cing the full powers thereby vested in them, though 
 in so doing they may violate the conditions annexed 
 to the assent.(/) So, if a party upon the faith of re- 
 presentations made by the projectors declare his 
 intention not to oppose the measure, but still re- 
 serve to himself an ulterior right to dissent, it 
 would be difficult to hold the company bomid by 
 an equity arising out of such representations for 
 which no consideration is in effect given, (g-) So, 
 where there is a negociation about the withdrawal 
 of opposition to a bill, and an approximation to an 
 agreement, which the opposing party by mistake 
 supposes to be an actual binding agreement, and on 
 the faith thereof withdraws his opposition ; still, if 
 there be no binding agreement ever in fact con- 
 cluded, a court of equity would not, it seems, 
 decree a performance of the terms of the supposed 
 agreement against the company ; and this notwith- 
 standing the projectors might have known that the 
 
 (_/") Aldred and others v. The North Midland Railway Com- 
 pany, 1 Railway Cas. 404. 
 
 (g) Judgment of Vice-Chancellor in Hargreaves x.The Lan- 
 caster and Preston Junction Railway Company, 1 Railway Cas. 
 429.
 
 Liabilities of a Railway Company. 165 
 
 other side was acting on a mistaken reliance that an 
 agreement was subsisting, and therefore have had 
 reason to suppose that the withdrawal of the op- 
 position was owing to that error ; (h) possibly, how- 
 ever, though a court of equity would not under such 
 circumstances enforce a specific performance of the 
 supposed agreement, a prayer for relief grounded on 
 the special circumstances of the case might be more 
 successtli]. (i) 
 
 210. Secondly, the projectors mnst receive the 
 benefit of the agreement ; therefore, if it is an unqua- 
 lified assent that is bargained for, and the party is 
 returned as neutral, or as a dissenting party, it 
 would seem that the agreement would hardly be 
 deemed binding in equity on the company, (/c) 
 
 211. Lastly, it would seem that a court of 
 equity cannot interfere against the direct operation 
 of the act of parliament; and therefore it is only 
 where something collateral is sought, that it can 
 give its assistance. Where, therefore, a party filed 
 a bill to restrain a railway company from entering 
 upon and taking possession of a particular field and 
 plantation, on the ground of an equity arising out 
 of his having withheld his opposition to the com- 
 pany's bill, in reliance on certain representations 
 made by the projectors, the act of incorporation 
 
 {h) Sheffield Canal Company v. Sheffield and Rotherham 
 Railway Company , 3 Railway Cas. 121 ; there is an appeal to 
 the Chancellor in this case. 
 
 (i) Ibid. Judgment of the Master of the Rolls. 
 
 (/c) See Hargreaves v. The Lancaster and Preston Junction 
 Railway Company, 1 Railw. Cas. 428 ; see also Greenhalgh v. 
 Manchester and Birmingham Railway Company, 1 Railw. Cas. 
 92; S. C. 9 Sim. 416.
 
 1 66 Company as constituted under the Act. 
 
 entitling the company to make their terminus in this 
 field, the court held they could not interfere, as it 
 would in effect be saying that the railway should 
 not commence at the place at which the legislature 
 had appointed it to commence, (l) 
 
 212. But suppose that, after the agreement is 
 made for the party's giving his assent to the under- 
 taking on certain terms, a material change is made 
 in the organization of such undertaking, as, for in- 
 stance, where the line of railway, the name, mem- 
 bers, or the like are varied ; still if the projectors, 
 under their new organization, adopt and make use 
 of that assent in obtaining their act, the persons 
 incorporated by that act cannot refuse to deal with 
 the party on the terms of the agreement, (w) If, on 
 the other hand, ihe new association do not make use 
 of the party's assent in obtaining the desired powers, 
 there would seem to be no equity for the company 
 who succeed in their place being bound by the 
 tei'ms on which that assent was given. («) 
 
 21 S. Although a court of equity so far recognizes 
 the connection between the company and the ori- 
 ginal projectors as to restrain the former from 
 exercising the powers conferred by the act, in vio- 
 lation of arrangements made with the latter, and on 
 the faith of which the act has been obtained ; yet it 
 seems highly questionable whether this doctrine can 
 
 {I) H ar greaves V. The Lancaster and Preston Jimctiou Rail- 
 uciy Campany, 1 Railw. Cas. 430. 
 
 (m) Stanley v. The Chester and Birkenhead Railway Company, 
 1 Railw. Cas. 58 ; S.C.3 Myl. & Cr. 773 ; 9 Sim. 264. 
 
 (ft) See the argument and the judgment of the Vice-Chan- 
 -cellor in Greenhalgh v. The Manchester and Birmingham Rail- 
 way Company, 1 Railw. Cas. 92; S. C. 9 Sim. 416.
 
 Liahilities of a Railway Company. 167 
 
 be carried further than what is requisite for securing 
 to the opposite party the protection for wliich he 
 bargained, and whether accordingly, as long as the 
 company are content to lie by and make no use of 
 the powers of their act in derogation of good faith, 
 such opposite party can enforce a specific perform- 
 ance of the supposed engagement. Such a doctrine 
 is at least open to very strong objection, on account 
 of its manifest tendency to force upon the company 
 the performance of what may often be in contraven- 
 tion of the tenor and purpose of their act, and so 
 unduly to interfere with the discretion given them 
 by the act. (o) 
 
 214. Istly. Of the nature and effects of a contract, 
 assuming it to be such as a railway company is 
 capable of concluding, and 2ndly, to be so concluded 
 as to bind the company ; and herein, 1 st, of the re- 
 quisites of such contract; 2ndly, of the laws of con- 
 struction by which it is governed; and .jrdly, of ^'^4- 
 legal incidents. 
 
 215. 1st. The requisites of a contract concluded 
 by a railway company, so far as regards either the 
 substance or form, differ in nothing from those of the 
 contract of any ordinary person. There must there- 
 fore be, 1st, an opposite party capable of being con- 
 tracted with ; 2ndly, a mutual assent ; 3rdly, a good 
 consideration ; 4thly, a lawful subject matter ; and 
 lastly, where the contract is such as falls within the 
 Statute of Frauds, the requisites of that statute must 
 be complied with. To instance the second propo- 
 sition, a negotiation was entered into between the 
 
 (o) See Tomlinson v. The Manchester and Birmingham Rail- 
 way Company, 2 llailw. Cas. 104.
 
 168 Company as constituted under the Act. 
 
 respective agents of a canal company and an in- 
 tended railway company about the withdrawal of 
 opposition by the former to the latter's bill. The 
 agent of the railway projectors in the first instance 
 made an offer, which the agent of the other side 
 rejected ; the latter, however, subsequently became 
 anxious to renew the treaty, and made an offer on 
 his part embodying certain terms. The agent of 
 the railway projectors acceding to these terms only 
 in part, the agent of the canal company in the first 
 instance refused to close with him, and again broke 
 off the treaty ; but subsequently he became willing 
 to accept the proposed terms, and wrote to that 
 effect to the other party, who, however, took no 
 notice of the communication : it was held that^ after 
 rejecting the offer of the other side, the agent of the 
 canal company was not at liberty at his own option, 
 without the renewed concurrence of the former, to 
 convert that offer into a binding agreement; and 
 that there being no mutual consent, an agreement 
 was never obtained ; and a bill, consequently pray- 
 ing a specific performance of the supposed agree- 
 ment on behalf of the canal company, was dismissed 
 with costs, (p) 
 
 216. Again, to consider the fourth requisite, viz. 
 the legality, &c. of the subject matter. Where a con- 
 tract, which it is sought to enforce against the com- 
 pany, is illegal, or inconsistent with the company's 
 act, and prejudicial to the shareholders, or such as 
 the company are only induced to conclude by some 
 
 (p) Sheffield Canal Ccmpanij v. Sheffield and Rotherham Rail- 
 way Cnmpany, 3 Rail'.v. Cas. 121 . There is, however, an appeal 
 pending in this case.
 
 Liabilities of a Railway Company. 169 
 
 fraud, misrepresentation, or other dishonest practice 
 on the part of the opposite party, the company are 
 not liable, (q) 
 
 21 ?. As to what is a sufficient compliance with the 
 Statute of Frauds ; where an order is given by a 
 railway company for goods of more than 10/. value, 
 some of which are ready made at the time of the 
 contract, and the rest are to be manufactured ac- 
 cording to order, and the goods which are ready 
 made are afterwards delivered and paid for, the 
 acceptance of them is a part acceptance of the whole,, 
 such as satisfies the provisions of the Statute of 
 Frauds, 2.9 Car. 2, c. 3, s. 17, and the 9 Geo. 4,. 
 c. 14, s. 7, as the whole forms one entire con- 
 tract. (?) 
 
 218. 2ndly. The same laivs of construction are 
 applicable to the contracts of railway companies as 
 to those of ordinary persons. The intention of the 
 parties accordingly, as it is collected from the entire 
 agreement, must be taken as the governing prin~ 
 ciple of interpretation in regard of all (s) such con- 
 
 (q) Hill V. Manchester and Salford Watei' Works Companij, 
 2 B. fie Ad. 544 ; case of same name, 5 B. & Ad. 866 ; Clarke 
 V. Imperial Gas Light and Cuke Company, 4 B. & Ad. 315. 
 
 (?•) Scott V. Eastern Counties Railway Company, 12 M. & 
 W. 33. 
 
 (s) Jones V. The Great Western Railway Companii, 1 Railw. 
 Cas. 684. In that case there was an agreement for the purchase 
 of a portion of a field by the company for 229/. ; 120/. for the 
 land, and 109^ for compensation for damage. The agreement 
 contained a stipulation that in case additional land was wanted 
 it should be taken and paid for at the same rate per acre. It 
 was held that the company, upon their wanting a second portion 
 of the same field, were to pay for it at the same rate per acre as 
 for the former piece, and likewise for the damage that might be 
 
 I
 
 170 Compaiuj as constituted under the Act. 
 
 tracts. A contract for the supply of locomotive 
 oigines contained a provision that each engine 
 should be subject to the performance of a distance 
 of 1000 miles with proper loads, and that a month 
 should be allowed for the trial, during which time 
 the manufacturers were to be liable for any breakage 
 which might occur, if arising from defective mate- 
 rials or workmanship ; but that if the company did 
 not avail themselves of the trial, or it proved satis- 
 factory, the manufacturers should be released from 
 all further responsibility in respect of the engines. 
 It was also agreed that the fire-boxes should be 
 made of copper 7-lGths of an inch thick, and that 
 the best materials and workmanship should be used. 
 It was held that the obvious intention of the parties 
 was by the trial to put an end to all questions as to 
 the quality of the work and materials, and that con- 
 sequently, after the trial was over and had proved 
 satisfactory, the company could not, in the absence 
 of fraud, take any objection on that score, though 
 nine months afterwards one of the fire-boxes burst, 
 v/hen it was discovered tiiat the copper was reduced 
 to the thickness of o-16ths of an inch, {t') 
 
 219. Srdly. A contract to which a railway company 
 is a party carries with it the like incidents as an ordi- 
 nary contract. Where there is a condition precedent 
 imposed by the contract on the opposite party, he 
 must show it to have been performed or dispensed 
 with, to entitle himself to recover against the com- 
 
 done by the severance in addition ; as the former payment could 
 not be meant to include the damage. 
 
 (() Sharpe v. Great V/estem Railway Company, 2 Railw. 
 Cas. 722; S. C. 9 M. & W, 7.
 
 Lmhiliiles of a Railway Company. 171 
 
 pany. {u) As for instance, where a railway company 
 contract for a supply of ballast to be screened to 
 their engineer's satisfaction, they are not liable upon 
 such contract, unless the ballast is in point of fact 
 shown to have been screened to the engineer's satis- 
 faction, (x) 
 
 220. Equity will relieve against fraud, breach of 
 contract, or oppression in a railway company as 
 much as in an ordinary person. (?/) Suppose there- 
 fore that a party contract with a railway company 
 for the performance of certain work, and that by the 
 terms of the contract the engineer, or other officer 
 of the company, is constituted judge of the amount 
 of work from time to time done by the contractor, 
 in order to the apportionment of the payments 
 accordingly, the latter may go into equity for relief, 
 if it appear that the engineer, &c. by his mode 
 of estimating the works, does not give him all that 
 he is entitled to claim under the contract, the inves- 
 tigation requisite to determine this point being of a 
 character that can only take place under the super- 
 intendence of a court of equity, and being impossible 
 to be made in a court of law, (?/) 
 
 221. So where in an ordinary case a court of 
 equity would decree the specific performance of a 
 contract, they will do so against a railway company, 
 as for instance, where there is a contract by the 
 company to do certain defined work on their own 
 
 (m) Parkes v. Tlte Great Weitern Railway Company, 3 Railw. 
 Cas. 17; S. C. 6Jur. 628. 
 
 (t) Ibid. 
 
 (y) Ranger v. The Great Western Railway Companv, 1 Rail. 
 Cas. 1 ; S. C. 3 Railw. Cas. 298. 
 
 I 2
 
 1 72 Company as constituted under the Act. 
 
 land, in the performance of which the opposite party 
 has so material an interest, that its non-performance 
 cannot be adequately compensated by damages at 
 law. {s) 
 
 222. If a railway company (a) agree for the pur- 
 chase of land, they stand in the position of any ordi- 
 nary purchaser. Supposing therefore the company 
 deliberately take possession before the purchase is 
 complete, and this without the consent of the owner, 
 as a general rule, they become liable to perform the 
 contract specifically on their part, and may at the 
 same time be restrained from retaining such posses- 
 sion until the purchase money is paid into court. (6) 
 And the court may order the money to be paid in, 
 though the company are willing to give up the pos- 
 session, (c) This, however, does not apply to a 
 case where the acts relied on as constituting a taking 
 possession on the part of the company have been 
 done under a mistake, and when the company sub- 
 sequently do all that they can to rectify the mis- 
 take, (d) 
 
 (s) Storer v. The Great Western liailuay Company, 3 Railw. 
 Cas. 106; S. C. 2 Y. & C. N. C. 48 ; see ante, p. 123. 
 
 (a) As to the liability the company incur by giving a notice 
 of their intention to take lands under their act, see post, sub-sect. 
 7, p. 199. As to their liability for compensation money as- 
 sessed by a jury, and the mode of enforcing the same, see same 
 sub-sect. post. 
 
 (6) Hyde v. The Great Western Railway Company, 1 Railw. 
 Cas. 278 ; Robertson v. The Great Western Railway Company, 
 ibid. 459. 
 
 (c) Judgment of Vice-Chancellor in Tomliiison v. The Man- 
 chester and Birmingham Railway Company, 2 Railw. Cas. 104. 
 
 (d) Tomlinson v. The Manchester and Birmingham Railwaif 
 Company, 2 Railw. Cas. 104.
 
 Ltahilities of a Railway Company. 175 
 
 223. If a railway company contract for the pur- 
 chase of land, which may or may not be eventually 
 required for the purposes of their act, the company 
 being undetermined whether to carry their line through 
 the land in question, or in a direction to avoid it (in 
 which latter case, of course, their authority to pur- 
 chase such land under their act would be at an end), 
 a court of equity would hardly, it is conceived, de- 
 cree a specific performance of such a contract while 
 this state of things continues, as the effect might 
 be to thrust upon the company as purchasers land 
 which in the event they might prove incapable of 
 taking, (e) Not but what if the owner could show 
 that, owing to the conduct of the company, he has 
 been incapacitated from applying his land to some 
 profitable use as he otherwise might have done ; or 
 that he has been led on by the company to give up 
 in their favour some particular speculation that he 
 had formed for employing his property ; he might 
 perhaps in those respects be entitled to relief, if he 
 shaped his complaint accordingly, (y ) 
 
 II. — Of the Liabilities of a Railway Company 
 in Tort, 
 
 224. It is proposed in the next place to treat of 
 the liabilities of railway companies ex delicto ; and 
 here three questions suggest themselves for our 
 consideration. 1st, how far a railway company is 
 capable of committing a tort ; 2ndly, when a tort can 
 he considered to be the piddic act of the company as 
 
 (e) See Tomlinsoti v. The Manchester and Birmingham Bail- 
 way Company, 2 Railvv. Cas. 104. 
 (/) Ibid.
 
 1 74 Company as constituted under the Act. 
 
 such; and 3rdly, assuming an act to be such as a 
 railway company is competent to do, and to be in 
 point of fact or law their act, what are its character 
 and incidents. 
 
 225. 1st. A railway company being a mere politic 
 person, cannot itself be guilty of a trespass or other 
 like act, which implies a physical capacity of action. 
 But still it may in point of fact authorize the 
 commission of such acts by another on its behalf. 
 It seems to follow, that at all events whatever act a 
 railway company can in its politic capacity compe- 
 tently order to be done on its behalf, it is liable for 
 the consequences, if it be of a tortious nature, and 
 to the prejudice of others, (g) Now in general under 
 this description are to be included such acts alone 
 as are expressly authorized by the company's statute, 
 or are fairly and reasonably requisite for attaining the 
 purposes of its institution. Supposing therefore the 
 act in question not to be fairly reducible to either of 
 these heads, the safer course would seem to be to 
 seek a remedy against those to whom the act can 
 be immediately brought home in their individual 
 capacity. 
 
 226. 2ndly. We have to consider when a tort may 
 be taken to he the act of the company as such. A 
 railway company, we have seen, may act in three 
 ways, either by the resolutions of a public meeting, 
 or by a vote of the directors, or, lastly, by an agent 
 duly appointed under the common seal of the com- 
 pany, (/i) The two former modes of action indeed 
 may be regarded as in a great measure coincident 
 
 {g) See Yarhorough v. The Bank of England, and cases there 
 cited, 16 East, 6. 
 
 {K) See ante, p. 70 et seq.
 
 Liabilities of a Railway Company. 1 75 
 
 with the latter ; as to carry out the vote of the com- 
 pany or the directors, the co-operation of a duly 
 constituted agent is in general necessary. 
 
 227. Although ordinarily it may he necessary 
 that the agent of a railway company should have an 
 authority under their common seal, in order to render 
 the company liable in tort for his acts, yet tlie rule 
 must at any rate be understood with certain excep- 
 tions. Ordinary services, for instance, constitute 
 one class of established exceptions ; ( i ) and again, 
 where an act is done for the benefit of a railway 
 company, and they subsequently adopt and avail 
 themselves of it, the company cannot, it should 
 seem, excuse themselves, on the ground of the actors 
 not being authorised under the common seal of the 
 company, (k) Even where it is essential that the 
 company should have authorized the act under their 
 common seal, such an authority will be presumed 
 after verdict. (1) 
 
 228. The act of the servant or agent, in order to 
 charge the company, must of course be such as falls 
 within the scope of the former's authority. A con- 
 tractor for the execution of railway works it seems 
 is to be deemed an agent of the company, and there- 
 fore what he does in the course of the execution of 
 such works is the act of the company, (m) And 
 
 ( i ) Carrf v. Matheus, 1 Salk. 191 ; Manhy v. Long. 3 Lev. 
 107. 
 
 (k) See Smith v. The Birmingham Gas Light Company, 1 
 Ad. & E. .'J26. 
 
 (I) Yarboiough v. The Bank of England, 16 East, 6 ; see 
 also Thames Haven Dock and Railway Company v. Hall, 5 M. 
 & Gr. 274. 
 
 (m) Seniple v. The London and Birmingham Raihcay Com- 
 pany, I Railw. Ca3.480.
 
 176 Company as constituted under the Act. 
 
 where the company give a general authority to a 
 party to manage any branch of their business, what- 
 ever that party does in the fair exercise of such 
 authority the company are responsible for ; even 
 though they are ignorant of the particular plan 
 adopted by him, and though such plan be a depar- 
 ture from the original and understood method, which 
 the company had no reason to suppose was discon- 
 tinued. (??) 
 
 229. 3rdly. We have to inquire into the character 
 and incidents of the supposed acts of the company. 
 Such acts are mainly reducible to three heads ; 1 st, 
 acts done in violation of those general duties which a 
 railway company, in common with the ordinary mem- 
 bers of the community, owe to that community ; 2dly, 
 acts do7ie or omitted to be done in violation of their 
 duty as owners of property whether real or personal ; 
 and 3rdly, acts done or omitted to he done against the 
 duties cast upon them by their act or acts of incor- 
 poration, or any general act. 
 
 230. First, for any damage to or conversion of 
 another's personal property, or for any other like 
 tortious interference with the same, a railway com- 
 pany are clearly liable. Where therefore the com- 
 pany seized the plant, materials, &c. of a railway 
 contractor, under a clause of forfeiture contained in 
 the latter's contract, the contractor having previously 
 become bankrupt and the subject matter of for- 
 feiture consequently having been removed by the 
 intervention of the title of the assignees, an action 
 of trover was held to lie against them at the suit of 
 the assignees, (o) So, likewise, for any act of ouster, 
 
 (n) Rei V. Medley, 6 C. & P. 292. 
 
 (o) Rourh V. Great Western Railway Company, 2 Railw. Cas.
 
 Liabilities of a Railnmy Company. 177 
 
 waste, trespass, nuisance, or the like, the company 
 are liable. As where, under a demise of buildings, 
 &c. from three out of four tenants in common, with 
 liberty to pull down such buildings and erect their 
 works, and lay the railway across the premises, the 
 company proceeded to pull down the buildings, and 
 laid their railway over part of the premises, &c., it 
 was held that the remaining co-tenant, vvho had 
 refused to join in the lease to the company, might 
 recover his share in ejectment, (p) And in such a 
 case a court of equity would not interfere to restrain 
 the tenant, as soon as he is put in possession of his 
 part, from taking up the railway laid down by the 
 company, Ike, the latter having acted throughout in 
 defiance of the tenant's legal rights. ((/) 
 
 ^.'3 1 . If the act of the company be of such a kind 
 as to threaten or actually to prove productive of 
 serious or irreparable injury to a party's rights, he 
 may apply to a court of equity for an injunction ; as 
 for instance, where a railway company carted a large 
 quantity of clay on a road, which a party had a right 
 to use as a means of access to his wharf, and thereby 
 created a considerable obstruction to the entrance 
 into the wharf, the intention of the company at the 
 same time being to bring a much larger quantity 
 and deposit it in the same place, it was held that the 
 owner of the wharf had a right immediately to apply 
 
 505 ; S. C. 1 A. & E. X. S. 51 ; 4 P. & D. 686 ; Haiclhon, v. 
 Newcaslle-upnn-Tyne and North Shields Bailwaif Cumpanv, 2 
 Railw. Cas. 288 ; 5. C. 3 A. & E. N. S. 734, n. (a). 
 
 (p) Doe (1. WaWH V. Horn, 5 M. & W. 564 ; 6. C. 3 M. Sc 
 W. 333. 
 
 (q) The Durham and Sunderland Railway Company v. 
 Wawn, 2 llailw. Cas. 398 ; S. C. 3 Beav. 119. 
 I 5
 
 178 Company as constituted under the Act. 
 
 to a court of equity for relief, and was not bound to 
 wait and try tlie effect of remonstrance, (r) 
 
 232. 2ndly. Where a railway company make 
 such an use of their own property as to prejudice their 
 neighbour s rights, they are liable for the damage 
 occasioned thereby. As if the company erect coke 
 works on their own premises, which prove to be of 
 so dangerous and unwholesome a nature as to be a 
 nuisance to the neighbourhood, the parties whose 
 health or property is affected in consequence may 
 have an action on the case against the company. 
 And when once their legal right is established by a 
 verdict, or in the first instance, as it should seem, 
 where they can make out a case of serious or irre- 
 parable mischief, they may apply to a court of equity 
 for an injunction to restrain the further continuance 
 of the nuisance, (s) 
 
 233. Srdly, A company is clearly liable for any 
 breach of the duties resulting from their act, 8fc. ; now 
 a company may offend against the tenor of their act 
 in three ways ; 1st, by not doing what they ought 
 to do under the act, 8fc.; 2dly, by doing that which 
 they ought not to do ; 3dly, by doing amiss what the 
 act authorizes, and what they may do. 
 
 234. 1st, then, a railway company as such are 
 liable for a nonfeasance or omission to perform a 
 duty cast on them by their act, and this even cri- 
 minally. Thus an indictment has been held to lie 
 against a railway company by their corporate name 
 for disobedience to an order of justices, &:c. re- 
 
 (r) Semple v. The London and Birmingham Hailuay Com- 
 pany, 1 Railw. Cas. 480. 
 
 (s) Semple v. The London and Birmingham Railuaii Com- 
 pany, 1 Railw. Cas. 120.
 
 Liahililles of a Railway Com'pamj. 179 
 
 quiring them to execute certain vvorks^ pursuant to 
 their act. (t) 
 
 235. So likewise where an accident is occasioned 
 by the company's neglecting to erect proper gates 
 and fences along the line of railway, or to keep them 
 in proper repair or properly closed after they are 
 erected, the company are liable, (m) 
 
 236. 2dly. If a railway company do what their 
 act does not authorize, they are liable for any mis- 
 chief that may thereby be occasioned to a third 
 party, (v) As for instance, where a railway com- 
 pany erected a station and embankment near a house 
 used as a starch manufactory, and thereby obstruct- 
 
 (t) Reg. V. The Birmingham and Gloucester Railway Cora- 
 pany, 3 Railw. Cas. 148 ; S. C. 3 A. & E. N. S. 223 ; 1 G. & 
 D. 457. 
 
 (u) Thus where cattle escaped on to the railway through au 
 adjoining gate, and were in consequence run over by a train 
 passing along the line, in an action brought against the com- 
 pany, Lord Abinger, C.B., before whom the case came on to 
 be tried, left it to the jury to say whether the fastening of the 
 gate was sufficient, and if so, whether they considered it had been 
 left open by any one other than the company's servants. — Cook 
 V. Aylesbury Railway Company, Hertford Assizes, 1842. 
 
 And again, in Hope v. Newcastle and Darlington Railway 
 Company, wliich was an action brought for an injury to a pon}- 
 under similar circumstances, tiie judge left it to the jury to say, 
 upon the facts of the case, whether they thought the accident 
 attributable to any negligence of the company in respect of the 
 state of the gate through which the pony escaped, there being 
 evidence that the gate in question would not close after being 
 opened of its own accord ; the jury found a verdict for the 
 plaintiff, though the gate was proved to have been shut half an 
 hour before. The Court subsequently refused to grant a new- 
 trial, &c. Northern Spring Circuit, 1845. 
 
 (v) When a branch railway made along a public highway a 
 nuisance and indictable, see ante, p. 80 et seq.
 
 1 80 Company as constituted under the Act. 
 
 ed its light and otherwise damaged it, the house 
 not being specified in the schedule of the act, and 
 being of a class which the company were prohibited 
 by their act from damaging without the consent in 
 writing of the owner, which they had not obtained, 
 it was held that the company were liable in an ac- 
 tion on the case, at the suit of the reversioner, for 
 such damage, {w) 
 
 237. It is to be observed that in this case the 
 mischief was of a character tliat might have been 
 foreseen when the station and embankment were 
 made. Had the mischief been such as could not 
 have been foreseen, as, for instance, in the case of 
 the stopping of a spring communicating with a 
 house protected by the statute, &c., another consi- 
 deration would have come into play in tlie com- 
 pany's favour, viz. that of the inconvenience to the 
 company in being exposed to actions for unforeseen 
 consequential damages resulting from their acts to 
 the class of property in question ; a consideration 
 which possibly might have been thought a sufficient 
 ground for exempting tlie company from liability 
 to be sued, and for leaving the injured party to his 
 remedy under the compensation clause of the sta- 
 tute, {x) 
 
 238. 3dly, The company are liable for injury or 
 mischief occasioned by their doing negligently or in an 
 improper manner that which they are authorized by the 
 statute to do. Suppose tliat in making the necessary 
 excavations for the railway, they proceed in so negli- 
 
 (it) Turner v. The Sheffieltl and Rothei-ham Railivay Com- 
 pany, 3 Railvv. Cas 222 ; S. C. 10 i\I. ,k W. 425. 
 (a) Ibid.
 
 Liabilities of a Railway Company. 181 
 
 gent or incautious (y) a manner as to endanger the 
 adjoining property, or dig so near an ancient house 
 or other building, which has the right of being 
 supported by their land, as to withdraw a portion 
 of its foundations, and consequently to weaken (2) 
 and undermine it, the company are liable to the 
 owner for the injury he sustains in consequence; 
 or an injunction may in such a case be obtained 
 to restrain the company from proceeding further 
 in the course complained of. (~) So likewise an 
 action lies against a railway company for building 
 one of the arches of the railway with a projecting 
 cornice so as to obstruct the light and air of two 
 cottages, and prevent the owner from raising his 
 boundary wall beyond the height of the arch, should 
 he be so minded, i^a) Upon a like principle it would 
 seem that a railway company is indictable, if, in 
 carrying their railway across a public thoroughfare 
 under the usual powers given for that purpose by 
 the legislature, their works are not so constructed 
 as either to cause no inconvenience at all, or at any 
 rate the least possible inconvenience to the public, (b) 
 And mere expense in such a case is no excuse for 
 not making the road over or under the line of rail- 
 way as convenient as before, (c) But where the 
 
 (y) Davis v. The London and Blarkuall liailway Com]iany, 
 
 2 Railw. Cas. 308 ; 6'. C, 1 M. & Gr. 799. 
 
 (i) See Wurhurton and others v. The Loudon and Biackviall 
 Railway Company, 1 Railw. Cas. 564. 
 
 (a) Dickman v. BLickwalL Itailway Company, N. P. coram 
 Lord Denman, June 29, 1841. 
 
 (6) Reg. V. The London and Southampton Railway Company, 
 
 3 Railw. Cas. 34, n. (a) ; Reg. v. Scott, 3 Railw. Cas. 187 ; 
 6'. C. 3 A. & E. N. S. 543. 
 
 (c) Reg. V. Scott, ubi supra.
 
 182 Com'pany as constituted under the Act. 
 
 work done by the company, though not absolutely 
 necessary for the making of the railway, is yet pro- 
 ductive of no material practical inconvenience to the 
 public, and evinces in the mode in which it is done 
 a reasonable regard to the interests both of the com- 
 pany and tlie public, there no indictment lies against 
 the company. ((/) 
 
 239. So likewise, where the company themselves 
 become the carriers on their own railway, they are 
 liable for any injury occasioned to the adjoining pro- 
 perty by the negligent or improper management of 
 any engine, carriage, &c., which they employ in the 
 course of their business, (e) Where, therefore, a 
 party's stack in a field near a railway, and about 
 eleven yards off the rails, was set on fire by some 
 
 (rf) Eeg. V. Sharpe, 3 Railw. Cas. 33, n. (a). 
 
 (e) Aldridge v. Great Western Railway Company, 2 Railw. 
 Cas. 852 ; S. C. 3 IM. &. Gr. 515. Hammim v. South Eastern 
 Railway Company, Maidstone Spring Assizes, 1845. That was 
 also an action for the destruction of farm buildings, including a 
 thatched barn, 5cc.,bj'fire, owing, as was alleged, to sparks being 
 negligently suffered to escape from an engine of the defendants 
 passing along the line. There was evidence of the fire havine 
 been caused by the defendants' engine ; it appeared further, that 
 the engine in question iiad no wireguard to the chimney, or per- 
 forated plate to the smokebox, although both these methods were 
 shown to have been used to some extent for the purpose of pre- 
 venting accidents to adjoining property by the escape of ignited 
 matter from engines. There was also evidence that it was mainlj' 
 where engines were overtasked that thay were liable' to emit 
 sparks, and that in various other instances there had been dis- 
 charges of sparks, &c. from the company's engines. Lord Den- 
 man, C. J., before whom the cause came on to be tried, directed 
 the jury that it lay upon the plaintiff to establish negligence, 
 find that they were therefore to consider whether, under all the 
 circumstances of the case, negligence were proved, directing
 
 Liabilities of a Railway Company. 183 
 
 sparks that escaped from an engine passing by, it 
 being admitted that the engine was such as was 
 usually employed on railways, and that at the time 
 of the accident it was used in the ordinary manner, 
 and for purposes authorized by the company's act, 
 it was held that this was no answer to an action on 
 the case, brought against the company for the loss, 
 but that it still left a question for the jury to decide, 
 viz. whether the bare fact of the escape of the sparks 
 from the engine, though one in ordinary use, was 
 not an element of negligence. (/") 
 
 240. But where the company do nothing more than 
 what their act authorizes them to do, and that in a 
 reasonably proper manner, there it seems the com- 
 pany are exempt from all liability (save under the 
 compensation clause of their act), for any mischief 
 or inconvenience that their acts may occasion either 
 to the public or individuals ; because (to the extent 
 at least that such damage or inconvenience is the 
 obvious and probable result of the powers conferred 
 on the company) it must be presumed to have been 
 in contemplation of the legislature in incorporating 
 the company and granting them their powers, and 
 to have been sanctioned accordingly for the sake of 
 the greater advantages to be derived by the public 
 
 them to take into account as an element of consideration that 
 had plaintiff tiled his barn he might have prevented the accident 
 altogether ; and also further to consider, whether there was any 
 evidence to satisfy them that the train had gone too fast. The 
 plaintiff had a verdict, and the Court subsequently refused to 
 grant a new trial. 
 
 Taylor v. South Eastern Railway Conrpany, tried at the same 
 assizes, was an action of the same nature as the preceding, and 
 attended with a like result. 
 
 (/) Ibid.
 
 1 84 Carnpany as constituted under the Act. 
 
 in general from the railway. When, therefore, an 
 act of parliament, in unqualified terms, authorizes a 
 company to make a railway in a certain defined line, 
 which in part is parallel and adjacent to an old high- 
 way, and to use locomotive engines on such railway, 
 the company cannot be indicted for a nuisance in 
 consequence of their locomotive engines having 
 frightened the horses of persons using the old high- 
 way, (g) 
 
 241. Where one railway company become lessees 
 or occupiers of the line of another company, and 
 take the traffic into their hands, for anything done 
 in the course of the management of that traffic by 
 the former company's servants, the remedy must, it 
 seems, be sought against that company. (/<) 
 
 (o-) Rei V. Pease, 4 B. & Ad. 31. As to when a branch rail- 
 way is indictable as a nuisance, see Bez v. Morris, 1 B. ^. Ad. 
 441, ante, p. 80 et seq. 
 
 (h) So ruled by Gurney, B., in an action brought against the 
 Northern and Eastern Railway Company for the act of a servant 
 of the Eastern Counties Railway Company, who at the time of 
 the occurrence were the occupiers of the line of the Northern 
 and Eastern Company. WheUlul v. Northern and Eastern Bail- 
 way Company (and rule for new trial refused), N. P. 1844.
 
 Of Compensation. 185 
 
 Sub-Sect. 7. — Of Compensation. 
 
 I. At what Time Compensation to be made. 
 II. In regard of what Interests. 
 
 III. For what Injuries. 
 
 IV. Of the Proceedings to ascertain the Amount of Compen- 
 
 sation. 
 
 1. Where Company the moving party. 
 
 (1.) Of the Notice to take Lands. 
 (2.) Of the Precept. 
 (3.) Of the Inquisition. 
 
 2. Where Owner of Land, &c. the moving party. 
 
 V. Of moving for a New Trial, Certiorari to remove and 
 quash Inquisition, &c. 
 
 VI. Of the Title. 
 VII. Of the Conveyance. 
 VIIT. Of the Purchase Money. 
 
 IX. Of the Costs. 
 
 I. Time of making Compensation, (i) 
 
 242. In general the making or tendering of com- 
 pensation is constituted by a railway act a condition 
 precedent to the company's entering upon or exer- 
 cising any dominion over the land which they are 
 empowered by their act to take or deal with for the 
 purposes of the railway, {k) Even though the lan- 
 
 (i) It should seem that a party, entitled to an easement over 
 lands purchased by the company, ought in general to claim com- 
 pensation under the act as soon as any damage is actually 
 sustained ; see Thicknesse v. Lancaster Canal Company, 4 M. & 
 W.472. 
 
 (k) As to provision of Lands Clauses Consolidation Act (8 
 Vict. c. 18) on subject of entry on Lands, see Act, s. 84 — 90, 
 post, App.
 
 186 Comjxiny as co?istituied under the Act. 
 
 guage of the act in imposing such a condition, if taken 
 strictly, would seem applicable only to a jmrchase of 
 lands by the company, it must, nevertheless, it seems, 
 be construed by intendment to embrace the case 
 of lands liable to be damaged or injuriously affected, 
 as it would be a manifest inconsistency in the act 
 itself to give leave to enter into lands to do any kind 
 of damage without previously making or tendering 
 compensation, and yet at the same time to declare, 
 where the object is purchase, that the company shall 
 not enter without previous payment. (/) 
 
 243. The 12th section of the North Midland 
 Railway Act conferred on the company the usual 
 powers of taking lands, S:c. subject to the condi- 
 tion that they were to make full satisfaction for the 
 land to be so taken, and for all damages by reason of 
 the execution of any of the powers of the act. The 
 31st section enabled proprietors of land to receive 
 payment for their land, and also compensation for 
 damages sustained by the taking of it, Sec. ; the 32nd 
 section provided for the impanelling of a jury in 
 cases of differences between the company and the 
 owners of lands which should be taken or injuriously 
 affected, to assess the amount of the purchase-money 
 and compensation. The 53rd section enabled the 
 company, upon payment, &c. of the money agreed 
 on or awarded for the purchase of any lands, &-c. im- 
 mediately to enter upon such lands ; provided that 
 before such payment it should not be lawful for them 
 to enter upon such lands. It was held, that the com- 
 pany could not enter on the plaintiff's land for the 
 
 (i) Innocent v. Konh Midland Railway Company, 1 R. Cas. 
 255.
 
 Compensation. 187 
 
 purpose of taking the subsoil to form an embank- 
 ment, without previously paying or tendering com- 
 pensation, (w) 
 
 244. Sometimes, however, the act dispenses with 
 the above condition in cases of a mere temporary 
 occupation («) of land by a company, the character 
 and extent of which, and of the damage it may occa- 
 sion, is scarcely ascertainable in the first instance, 
 and the company is enabled to take possession of the 
 land without previously compensating the owner, 
 subject of course to the necessity of so doing at such 
 future period as is specified by the act. The dig- 
 ging up and removing the subsoil of land cannot be 
 deemed a temporary taking possession of such land 
 within the meaning of the ordinary provisions on 
 this subject, (m) 
 
 II. In regard of what Interests. 
 
 245. So far as regards a strict legal interest, little 
 difficulty can, in general, be felt, (o) Where the 
 statute speaks of owners and proprietors in defining 
 the parties entitled to compensation (ji) these terms 
 are not, it seems, to be understood simply of the 
 
 (jii) Innocent v. North Midland Railway Comp., 1 R. Cas. 265. 
 
 (n) As to provisions of Railways Clauses Consolidation Act 
 (8 Vict. c. 20,) on subject of temporary occupation of lands, 
 see act, ss. 30 — 44, post, App. 
 
 (o) As to provision enabling the owner of any house, build- 
 ing, &c^ part of which is required for the purpose of a railway, 
 to insist on the purchase of the whole, see ante, pp. 112, 113; 
 and as to closely analogous provision enabling the owner of any 
 house, building, &c. situate within a given distance of the railway, 
 and deteriorated by it, to insist on the company's purchasing it, 
 see ante, pp. 114, 115. 
 
 (p) Lister V. Lobley, 6 Nev. & M. 340.
 
 1 88 Company as constituted under the Act. 
 
 owners of the inheritance, but may be taken to em- 
 brace generally the interests of all persons having a 
 beneficial interest (</) in the land, and of termors (r) 
 among the rest. 
 
 246. Where there is a change in the owner- 
 ship of land pending the settlement of a claim 
 for damage done to such land by a railway com- 
 pany, semble, the compensation for such damages, 
 if temporary, belongs to the party who had the legal 
 estate when the damage was done, but, if permanent, 
 goes with the land to the subsequent owner, (s) 
 
 247. A party entitled to an easement over lands 
 purchased by the company cannot, it seems, under 
 the general provisions of a railway act, maintain an 
 action for acts done upon those lands by the com- 
 pany to the prejudice of his easement (so far at 
 least as such acts are done in the execution of the 
 purposes of the act), but ought, as soon as any da- 
 mage is actually sustained, to claim compensation 
 under the act (r). 
 
 248. It is an usual enactment in a railway act to 
 require that tenants (t) at will, lessees for a year, or 
 from year to year, and other persons having no 
 
 (q) See note(p), ante, p. 187. 
 
 ()•) Lessee underletting, when special case held not to show 
 sufficient interest of, in premises to entitle him to compensation 
 under canal act, see Thicknesse v. Lancaster Canal Company, 4 
 M. & W. 472. 
 
 (s) See judgment of Alderson, B., in Cator v. Croydon 
 Canal Company, 4 Y. & Coll. 405. 
 
 (t) As to the provisions of Lands Clauses Consolidation Act 
 (8 Vict., c. 18) in regard of leases, see act, ss. 119 — 122, post, 
 A pp. As to the right of compensation of lessee of coal mines, 
 see, aute, p. 120, n. (y).
 
 Compensation. 189 
 
 greater interest than the above, shall give up pos- 
 session to the company at six months' notice, the 
 latter being bound to make any such parties an 
 adequate compensation where they are required to 
 do so before the expiration of their term, &c. The 
 effect of this, in case of a tenancy from year to year, 
 is to enable the company either to give the or- 
 dinary landlord's notice ending with the current year 
 of the tenancy, in which case no compensation is 
 due to the tenant, or six months' notice under the 
 act, terminating at any time, in which case the 
 tenant becomes entitled to compensation for the 
 value of the term between the expiration of the six 
 months' notice and the time when a regular land- 
 lord's notice would have expired. To entitle the 
 tenant to such compensation the premises must be 
 actually given up. (ii) If, instead of this, the com- 
 pany choose to waive their notice so far as regards 
 the time of giving up the premises, and offer the 
 tenant to let him remain in possession till the expi- 
 ration of his current year, and he elects to do so, 
 this places the parties in the same situation as if 
 a regular landlord's notice had been originally 
 given, and the tenant can claim no compensation, 
 inasmuch as he has voluntarily retained posses- 
 sion, (x) It makes no diflerence that the company 
 do not become landlords until after the notice is 
 given, it being a notice that was meant to operate 
 under the act, and that would have done so but for 
 the subsequent conduct of the parties, (a-) 
 
 («) Heg. V. The London and Southampton Railway Comyany, 
 1 R. Cas. 722 ; S. C. 10 A. & E. 3 ; 2 P. & D. 243. 
 
 (i)Reff. V. The London and Southampton Railway Company, 
 ubi supra.
 
 1 90 Company as constituted under the Act. 
 
 249. Where a railway company choose to avail 
 themselves of the above powers of their act to gain 
 possession of premises, semhle this operates as a 
 determination of the tenancy by the act of the law. 
 The tenant accordingly becomes entitled to an ap- 
 portionment of the then current rent as against his 
 landlord. Such apportionment, however, can, it 
 seems, only date from the time when the tenant, 
 according to the provisions of the act, was under 
 the absolute necessity of quitting possession. If he 
 choose to give up the premises before this period, 
 it must be regarded, not as the act of the law, but 
 as his own voluntary act, that evicts him, and he 
 must therefore submit to pay the rem up to the 
 period until which he might have retained posses- 
 sion, {y) 
 
 3-50. But the occupant of premises required for 
 the purposes of a railway may have an interest {z) 
 in those premises, which, without strictly falling under 
 the above definition of a legal interest, is yet highly 
 valuable, and which, but for the passing of the act 
 the tenant might have hoped to enjoy for a pro- 
 longed term, such as an interest in regard of the 
 goodwill of a business, the. hope of a beneficial re- 
 newal, tenant's fixtures (a), improvements, and the 
 like. An interest, however, of this kind, is too 
 
 (i/) Wainwright v. Ramsden, 5 M. & W. 602. 
 
 (z) In regard of what tenant at will, &c. entitled to compen- 
 sation under Lands Clauses Consolidation Act (8 Vict, c. 18,) 
 see act, sect. 121, post, App. 
 
 (a) As to when tenant entitled to compensation for goodwill, 
 improvements, 6cc., see cases decided on Hungerford Market 
 Company's Act, 2 B. Sc Ad. 341, 348 ; 4 B. & Ad. 596, 592, 
 600, n. (c) • 9 A. & E. 463.
 
 Compensation. 191 
 
 slight and precarious to be made a ground for com- 
 pensation, except there are conclusive words in the 
 act of parliament to embrace it. It will not, there- 
 fore, be held to be included in the terms of an act 
 which speaks simply of the value of the tenant's un- 
 expired term and interest. (6) 
 
 III. For what Damages. 
 
 2ol. Our third head of inquiry is as to the kind 
 of damage for which a party may claim compensa- 
 tion under the ordinary provisions of a railway act 
 on that subject, (c) For the purpose of such in- 
 quiry cases of damage caused by a railway company 
 may be regarded in two lights : 1st, according to 
 tlieir general nature and character ; and 2ndly, ac- 
 cording to the time of their accruing. 
 
 The former head of inquiry again subdivides 
 itself into several : 1st, whether the damage is 
 caused in the execution of the powers of the act ; 
 :2ndly, whether it is independent or not of a taking 
 of land ; and Srdly, assuming it to be so, and the 
 act to make provision for compensating such species 
 of damage, whether it is, in other respects, of a cha- 
 racter contemplated by the act as a ground of com- 
 pensation. 
 
 2.52, Character OF Damage. 1st. Whether caused 
 la execution of Act. (c) In general, to entitle a party 
 to compensation, under a railway statute, for any act 
 
 (fe) Rex V. Liverpool and Manchester Railway Company, 4 A. 
 & E. 650. 
 
 (c) As to provision of Lauds Clauses Consolidation Act (8 
 Vict. c. 18,) on this head, see Act, s. 18, et seq. post, App., and 
 s. 68, lb.
 
 192 Company as constituted under the Act. 
 
 of the company, it must be something done in the 
 execution of the powers of the act. (e). Where, 
 therefore, the company are guilty of a clear excess 
 of the authority conferred on them by their act, as, 
 for instance, by doing what their act prohibits, the 
 injury thereby occasioned would seem to be more 
 properly remediable by action than by seeking com- 
 pensation under the company's act ; accordingly, 
 where a company in the execution of the powers of 
 their act erected a railway station and embankment 
 near a house used as a starch manufactory, and 
 thereby obstructed its lights, &c., the house being 
 of a class which the act expressly declared they 
 should not take, injure, &c. without the owner's con- 
 sent in writing, and no such consent having been ob- 
 tained, it was held that an action lay against the com- 
 pany for the damage, {f ) 
 
 253. Assuming the act complained of to be done 
 in the execution of the powers of the act, it remains, 
 secondly, to be considered whether it is independent 
 or not of a taking of land, {g) The latter class of in- 
 juries, viz. those connected with a taking of land, 
 are those for which a railway act in a greater or less 
 degree invariably provides compensation. (//) With 
 
 (e) See as to this point. Rex v. The Hmigerford Market Com' 
 -pany 3 X. & M. 622 ; S. C. 1 A. & E. 678 ; Rex V.Nottingham 
 Old Watenonrks Company, 6 A. & E. 355. 
 
 (f ) Turner v. Sheffield and Rotherham Railway Company, 3 
 R. Cas. 222 ; S. C. 10 M. & W.425. 
 
 (g) See, ante, n. (c), p. 191. 
 
 (/i) It has however been questioned whether, under the pro- 
 visions of the Eastern Counties Railway Act, 6 & 7 Will. 4, 
 C. cvi., a jury have power to award compensation, not merely 
 for the general injury sustained by the severance of land taken
 
 Compensation. 193' 
 
 regard to the former class, the question how fat 
 compensation can be claimed for them or not, must 
 depend upon the terms of the particular act. Con- 
 sidering, however, the nature of the powers en- 
 trusted to railway companies, and the great extent 
 of country through which their works are, generally 
 speaking, intended to be carried (all of which renders 
 it but reasonable that any injury to property which 
 can be shown to arise from the prosecution of those 
 works should be fairly compensated to the party 
 sustaining it), it would seem that where an intention 
 to give compensation for injuries of the class in 
 question is expressed in any part of the act, every 
 fair intendment ought to be given to effectuate that 
 intention. Where, therefore, an act, in conferring 
 upon the company its powers of taking land, &c. 
 expressly declares that such injuries are provided 
 for in the compensation clause ; and where the 
 earlier part of that clause is sufficient to embrace 
 all such injuries, such plain and clear tokens of the 
 intention of the legislature can not, it seems, be 
 allowed to be defeated, simply because the direc- 
 tion contained in a subsequent part of the same 
 clause, as to the finding of the jury, is applicable 
 only to the case of land taken and of some ulterior 
 damage thereupon. 
 
 254. By a railway act a company was empowered 
 to lower roads, &c. making full satisfaction in man- 
 ner thereinafter nnentioned to persons interested in 
 lands to be taken, used, or injured lor all damages 
 sustained by executing the powers of the act. For 
 
 for the purposes of the company, but also for a total loss of all 
 communication. See Mamu,,,!^ v. Eastern Counties Railway 
 Company, 12 M. & W. 237, judgment of Parke, B. 
 
 K
 
 1 94 Company as constituted under the Act. 
 
 settling differences between the company and per- 
 sons interested in lands to be taken, used, damaged, 
 or injuriously affected by the execution of such 
 powers, if any person entitled to such purchase 
 money or compensation as aforesaid should refuse 
 the company's offer, the matter was to be settled by 
 a jury, who were to assess the sum to be paid for 
 the purchase of the lands, and also the compensation 
 for damages done by severance, &c. such com- 
 pensation to be assessed separately from the value 
 of the land. It was held that compensation was not 
 limited by the act to the cases of a taking of or 
 entry upon land^ bat might be awarded for an injury 
 quite independent of any such taking or entry, 
 namely, for the lowering a road on which certain 
 land abutted, and thereby injuring and deteriorating 
 the land, impeding the access thereto, and rendering 
 additional fences necessary, (i) 
 
 25o. So, likewise, where a company entered upon 
 the adjoining land and began to dig and remove the 
 subsoil for the purpose of making an embankment, 
 it was held to be an injury falling within the scope of 
 the compensation clause, though the direction given 
 by that clause as to the finding of the jury was in 
 express terms applicable only to the case of a taking 
 of land and of ulterior damage thereupon, (k) 
 
 256. 3dly, Assuming the class of acts in question 
 to fall within the scope of a railway statute, there 
 remains a question as to the general character of 
 
 (i) Heg. V. T£,astern Counties Railway Company, 2 A. 6c £. 
 N. S. 347 ; S. C. -20 Law Journ. Q. B. 66 ; 1 G. 6c D. 589. 
 
 (k) See judgment of Vice-Chancellor in Innocent v. North 
 Midland Railway Company, 1 Railway Cas. 242; see also Rex 
 V. Nottingham Old Water Works Company, 6 A. & E, 355.
 
 Compensation, 195 
 
 the particular act, and whether it is such as makes 
 it a sufficient ground for compensation. The cases 
 for which a railway act in general purports to make 
 provision in this respect, are those of lands, &c. 
 damaged, injured, or injuriously affected, in the exe- 
 cution of the powers of the act. (/) Such language 
 must, it is conceived, be understood of direct injuries, 
 occasioned by some positive act of the company, 
 as if in the construction of their works they chance 
 to darken the lights of a house, stop a drain, inter- 
 rupt a flow of water, or the like. Accordingly a 
 charge of lowering a road, and thereby deteriorating 
 the adjoining land, impeding its access, and render- 
 ing additional fences necessary, has been held enough 
 for the purpose, the lowering of the road being pro- 
 vided for by the act. (in) So likewise the raising 
 the level of a brook and so causing an inundation 
 of the applicant's property, {n) and the making and 
 maintaining of a railway without a sufficient drainage 
 to protect the neighbouring property, &c. whereby 
 a like result was produced, (o) 
 
 {i) As to provision of Lands Clauses Consolidation Act, 
 8 Vict. c. 18, '^on this head, see act, s. 68, post, App. 
 
 (to) Heg. V. The Eastern Counties Railway Company, 2 A. 
 &L E. N. S. 347 ; &. C. 20 Law Journ. Q, B. 66; 1 G. k D. 
 589. So likewise the cutting off access to property by raising 
 an embankment near it, and compelling the owner to oDen new 
 means of access, &c. has been held a sufficient ground for a 
 mandamus issuing to a company ; Reg. v. Bristol and Eieter 
 Railway Company, Crown Office Roll, 7 Vict. 
 
 (n) Reg. V. North Midland Railway Company, 2 Railway 
 Cas. 1. 
 
 (o) Reg. V. North Union Railway Company, 1 Railway Cas. 
 729. So [likewise the cutting off the supply of water to a 
 K 2
 
 196 Company as constituted under the Act. 
 
 257. On the other hand, (p) remote or trifling 
 inconveniences, or such as are the necessary conse- 
 quence of the making of the railway, and in a greater 
 or less degree affect all the neighbouring property, 
 cannot it should seem be taken to fall within the 
 scope of the provisions under consideration, such as 
 the loss of custom or the diminution of the value of 
 premises to sell or let, as a shop or public-house, 
 resulting from the destruction of neighbourhood, 
 obstruction of access from the stopping of public 
 thoroughfares in the course of the formation of a 
 railway, and the like, {q) 
 
 258. Where the language of an act is hypothetical 
 and evidently contemplates contingent damages only, 
 it cannot it should seem be extended to injuries 
 the necessary consequence of the execution of the 
 act. (r) 
 
 bleaching ground, &c. (Reg. v. Sheffield, Ashton-uvder-Lyne, 
 and Manchester Railway Company, January, 1842) ; the injuring 
 a well of spring water (Reg. v. Manchester and Leeds Railway 
 Company, January, 1843) ; the drying up a pond in the course 
 of excavating the railway, &c. which pond formed the water 
 boundary of certain premises, &c. and obliging the occupiers to 
 make a new fence ( Reg. v. Eastern Counties Railway Company, 
 Crown Office Roll, 4 Vict.) ; and the cutting into a principal 
 vein of coal below the level of the railway, digging out a quantity 
 of" coal, ccc. and thereby letting the water into the coal works, 
 &c. (Reg. V. Bristol and Gloucester Railway Company, Crown 
 Office Roll, 7 Vict.) have been held sufficient grounds for a 
 mandamus issuing to a company. 
 
 (p) See judgment of Lord Denman, C. J., in Reg. v. Eastern 
 Counties Railway Company, ubi supra. 
 
 (q) See judgment of Lord Denman in Rex v. The London 
 Bock Company, 5 A. & E. 163, 
 
 (r) See Rex v. The London Dock Company, 5 A. & E. 163.
 
 Compensation. 197 
 
 259. Secondly. Of Damages viewed in respect 
 OF THE Time of their accruing. In order to pro- 
 vide for future damage, where there is a subsisting 
 cause of injury which is incapable of beneficial 
 alteration so as to prevent the occurrence of mis- 
 chief, a railway act usually enacts that the jury shall 
 assess the proper amount of compensation, not only 
 for past, but likewise for future temporary or per- 
 petual or for recux'ring damages, the cause of which 
 cannot be fully obviated by the company. To bring 
 a mischief within the purview of this clause, it must 
 not be merely speculative and imaginary, and such 
 as may never occur at all, but it must be one the 
 cause of which is actually existing in some work of 
 the company, and of which an example has occurred 
 in bygone time, so as to afford a proper estimate 
 for the future : for an instance may be put the case 
 of leakage through the banks of a canal, and the 
 interruption of a watercourse, the effect of which 
 can be collected from prior instances of mischief, («) 
 Where therefore one railway is intended to cross 
 another, the proprietors of the latter cannot apply 
 for compensation on the score of apprehended ob- 
 struction, but must wait till the proprietors of the 
 former commence their operations and those opera- 
 tions are found to produce actual injury, of a more 
 or less permanent kind, by obstructing the traffic on 
 the line which is crossed by the other, (t) 
 
 (s) Judgment of Parke, B., in Lee v. Milner, 2 M. & W. 
 842 ; see also Rex v. Tke Justices of the West Riding of York- 
 shire, 1 A. & E. 571. 
 
 (t) Lee V. Milner, 2 M. & W. 824; see ako Thichiesse v. 
 Lancaster Canal Company, 4 M. & W. 472,
 
 198 Company as constituted under the Act. 
 
 260. Where the character and extent of a future 
 injury is capable of being ascertained, the party 
 affected ought it seems to bring forward his entire 
 claim at once, and not to lie by and make a fresh 
 claim for compensation with every fresh recurrence 
 of the mischief, (m) But for a new description of 
 injury, it would seem- to be competent for a party to 
 have a new remedy. 
 
 IV. Proceedings to ascertain Amount of Compensation. 
 
 ]. — Where Company the moving Part}'. 
 2. — Where Owner of Land, &c. 
 
 261. There are two cases to be here considered: 
 the first, where the company is desirous of getting 
 possession of the land upon which they are authorized 
 by the act to enter ; the second, where an owner of 
 property seeks to compel the company to take the 
 entirety of his property, or to make him compensa- 
 tion for injuries which, as he says, have been inflicted 
 by the company in the course of their works. Sec. 
 In the former case the company is of course the 
 moving party ; in the latter, the owner of the pro- 
 perty. 
 
 262. Where Company the moving Party. 
 (1.) Notice. First, then, suppose a company are 
 desirous of taking particular property under the 
 provisions of their act, what a railway act usually 
 prescribes to the company as the first step, is to 
 give a certain number of days' notice to the owner 
 of such property ; the object of the notice is of 
 
 (it) See Rex v. Leeds arid SeWy Railway Company, 3 A. & 
 E. 683, and more particularly the judgment of Littledale, J.
 
 % 
 Compensation. 199 
 
 course to aftbrd to the owner precise information of 
 what he is required to treat for. It ought therefore 
 to show clearly and accurately the quantity of pro- 
 perty intended to be taken, its position, dimensions 
 and figure, and where it constitutes a part only of 
 the owner's entire premises, the particular manner 
 in which it is to be cut out of the whole, (v) 
 
 263. Effect of notice. The moment the company 
 have given the notice, and thus communicated to the 
 proprietor what part of his property they require, the 
 relative situation of vendor and purcliaser is thereby 
 created between them, {x) It gives the proprietor 
 a right to insist upon the company taking that which 
 they have given notice of their intention to take, a 
 right to be enforced by a court of equity, or else 
 by a court of law by mandamus. (?/) For by the 
 measure in question, the company must be con- 
 sidered to have exercised the option given them by 
 the statute of purchasing the premises, an option 
 from which they cannot afterwards be allowed to 
 recede. {z) 
 
 264. Counter notice on part of oivner. Upon re- 
 ceipt of the notice, the party to whom it is given 
 
 (v) Sims V. The CommerciaL Railway Company, 1 Railway 
 Cas. 434. 
 
 (i) Stone V. Tlie Commercial Railway Company, 1 Railw, 
 Cas. 375 ; S. C. 4 Myl. & Cr. 122 ; Doo v. The London and 
 Croydon Railway Company, 1 Railway Cas. 274. 
 
 (jf) Judgment of Lord Chancellor in Stone v. The Commercial 
 Railway Company, 1 Railway Cas. 400, 401 ; S. C. 4 Myl. & 
 Cr. 122. 
 
 (z) Rex V. The Hungerford Market Company, 4 B. &: Ad. 
 333 ; Rex v. The Commissioners for improving Market Street, 
 Manchester, ibid. n. (a).
 
 200 Company as constituted under the Act. 
 is within a certain time to communicate to the com- 
 pany what the nature of his estate is, and what he 
 is willing to take for it. The notice and counter 
 notice being thus given, the parties have the oppor- 
 tunity, if they can, of coming to an amicable arrange- 
 ment, (a) 
 
 265. (2.) Precept. If the parties cannot agree at 
 all, or only as to part of the property required by 
 the company, the act then proceeds to provide (6) 
 the means by which the remuneration to be paid the 
 proprietor for the lands in question is to be ascer- 
 tained ; viz. by empowering the company to issue a 
 precept (c) for the purpose of bringing the case be- 
 fore a jury, (a) 
 
 This precept must, in the first place, he consistent 
 with the previous notice. The quality, quantity, 
 position, dimensions and figure of the property as 
 laid down in the one must fairly tally with those 
 described in the other. To hold otherwise, indeed, 
 would be virtually dispensing with the previous no- 
 tice required by the act ; for the property of which 
 the jury is to fix the value being that prescribed by 
 
 (a) Judgment of Lord Chancellor iu Sione v. The Commercial 
 Railway Company, 1 Railway Cas. 400, 401 ; S. C. 4 Myl. & 
 Cr. 122. 
 
 (b) The Lands Clauses Consolidation Act (8 Vict. c. 18) 
 provides a threefold method for settling cases of disputed com- 
 pensation according to the nature of the case, viz. by two jus- 
 tices, or by arbitration, or by a jury. See act, s. 21 et seq., post, 
 App. 
 
 (c) Before the precept issues, the Lands Clauses Consolidation 
 Act (8 Vict. c. 18) requires that notice be given to the other 
 .party. See act, s. 38, post, App. As to the provision of the 
 same act on the subject of the precept, see ib. s. 39.
 
 Compensation. 201 
 
 the precept, and that precept being no notice to the 
 other party, if the company were at liberty either to 
 exclude from the precept any portion of the pro- 
 perty comprised in the previous notice, or vice versa, 
 to include in the former what is not included in the 
 latter, they might go before the jury and ask their 
 verdict upon a case touching which such other party 
 had no intimation of their real intention, and which 
 therefore in all probability he could not be prepared 
 to meet. 
 
 266. Secondly. The precept must be addressed to 
 such party as the act contemplates. Where therefore 
 a railway act provides that in the case of the sheriff 
 being a shareholder, or interested in the matters in 
 question, the precept shall go to another person, 
 a precept addressed to a sheriff so circumstanced 
 would be irregular, (d) 
 
 267. Thirdly, The precept ought, it seems, to 
 show upon the face of it, either expressly or impliedly, 
 the authority of the company to issue the same under 
 their act. (e) Such authority, however, may in ge- 
 neral be presumed from the mere fact of the issuing 
 of the precept by the company, as this leads to a 
 necessary intendment that a previous agreement for 
 the purchase could not be made, in which case the 
 company have, according to the usual provisions of 
 a railway act on this point, authority to issue their 
 warrant, (e) 
 
 (d) See Corrigall v. The London and Blockwall Railway 
 Compaiiy, 21 Law Journ. C. P. 209 ; S. C. 5 M. & Gr. 219. 
 
 (e) See Taylor v. Clemson, 2 A. & E. N. S. 1030; S. C. 
 2 G. & D. 346 ; 3 Railw. Cases, 65. 
 
 K 5
 
 202 Companij as constituted vnder the Act. 
 
 268. (3). Inquiry. The next step to be considered 
 is the inquiry. This involves four questions respect- 
 ing, first, the capacity of the presiding judge ; se- 
 cond, the finding of the jury; third, the form of 
 the inquisition ; and, lastly, its effect in binding the 
 property. 
 
 269. First. The inquisition (/) must be holden 
 before the party contemplated by the act. Where 
 therefore a railway act specifies a particular party 
 as judge, that party must exercise his authority in 
 person, and cannot delegate it to another ; as where 
 an act provided that the precept should be addressed 
 to the sheriff, and if he and the undersheriff* were 
 interested, then to the coroner, &c., and the inquisi- 
 tion was holden before the clerk of the undersherifF, 
 assisted by a barrister as assessor, the clerk and 
 the assessor having been appointed by the sheriff 
 his deputies for the purpose, the court seems to 
 have inclined to the opinion that the proceedings 
 were erroneous, {g) 
 
 270. A railway act usually provides for the case 
 of the officer nominated in the act as judge being a 
 shareholder, by appointing another party in such in- 
 stance to officiate in his stead. In such a case, (/<) 
 
 (/ ) As to similar provision of Lands Clauses Consolidation 
 Act (8 Vict. c. 18) on subject of inquisition, see act, s. 43, 
 post, App. Ten days' notice of the inquiry must be given, ib. 
 s. 46. 
 
 (g) Reg. V. The Sheffield, Ashton-under-line, and Manchester 
 Railway Company, 1 Railway Cas. 546; .S. C. 11 A. & E. 
 194. 
 
 (/),) See Corrigall v. The London and Blackmail Railway 
 Company, 21 Law Journ. C. P. 216 ; S.C.5 M. & Gr. 219.
 
 Compensation. 203 
 
 were the interested party to preside at the inquisi- 
 tion, the proceedings would be bad ; though if the 
 other side, with notice of the objection, were to appear 
 before such party and suffer the inquisition to pro- 
 ceed, and judgment to be given thereon, it might 
 perhaps be construed into a waiver of the informa- 
 lity. It seems questionable whether the above pro- 
 vision can be taken to apply to a case where the 
 party appointed to preside at the trial is some party 
 holding a particular office, and the office is consti- 
 tuted of two persons (as in the sheriffwick of Mid- 
 dlesex) of whom one only is a shareholder, (i) 
 
 271. 2dly, The finding of the jury must be con- 
 sistent with the precept. It is the value of the land 
 comprised in the precept that the jury are sum- 
 moned to assess. The company cannot therefore 
 at the trial depart from their precept and call on the 
 jury to give a verdict touching any fraction of the 
 property in question they may think proper, {k) 
 
 272. Where there are different persons having 
 several interests in the property required for the 
 purposes of a railway, the jury, under the usual pro- 
 visions of an act, must apportion the compensation 
 among the several parties, according to their respec- 
 tive interests, at least if they are impanelled to do 
 so ; and an assessment of the compensation in one 
 gross sum would accordingly be bad. (I) 
 
 The like rule would seem to apply where the 
 
 (i) See ante, 202, ti. (/i). 
 
 (fc) Judgment of Lord Chancellor in Stone v. The Commercial 
 Railway Company, 1 Railw. Cas. 403 ; S. C. 4Myl. &Cr. 122. 
 
 (/) See Rex v. The Trustees of the Norwich and Watton Road, 
 5 A. & E. 578 ; S.C.I Nev. & P. 32.
 
 204 Company as constituted under the Act. 
 
 same party prefers a twofold claim, both for pur- 
 chase-money and for damages, (wi) if the jury are 
 required at the trial to make a separate assessment. 
 But if no demand is made at the time on the part 
 either of the company or the claimant for a separate 
 assessment, then it seems a verdict is not to be re- 
 garded as a nullity, for not adjudicating separately 
 on each claim, even though the act expressly de- 
 clares that the one claim shall be inquired into and 
 assessed separately from the other ; the enactment 
 in question not being compulsory, or in the nature 
 of a condition precedent, so that if it be not ob- 
 served all the subsequent proceedings are to be held 
 void, but only directory, so as to empower the com- 
 pany or the claimant to call on the sheriff to keep 
 the evidence distinct as to the value of the premises, 
 and the satisfaction for damage done, and to find and 
 adjudicate a separate sum in respect of each, (m) 
 
 27S. Where the jury assess a compensation to a 
 particular individual without noticing the interest of 
 any one else, it is not to be presumed, in the absence 
 of evidence to the contrary, that they have given 
 such compensation for a larger interest than the 
 party really had, or have overlooked any other per- 
 son's interest, (o) 
 
 (m) As to provision of Lands Clauses Consolidation Act 
 i(8 Vict. c. 18) on this point, see act, s. 49, post, App. 
 
 (n) In the matter of the London and Greenwich Railway 
 Company, 2 A. & E. 683 ; S. C. A Nev. & M. 458 ; Corrigall 
 V. The London and Blackuiall Railway Company, 21 Law Journ. 
 C. P. 216 ; S. C.5 M. & Gr. 219. 
 
 (o) Rex V. Nottingham Old Water Works Company, 6 A. & 
 E. 355.
 
 Compensation. 205 
 
 274. Thirdly. The finding of the jury is usually 
 embodied in what is termed an inquisition. Such 
 inquisition ought, it seems, of itself to show that it 
 is warranted by the act. It need not however do 
 this expressly, but it is enough if the jurisdiction 
 appear by necessary intendment. Now, under the 
 usual provisions of a railway act, what is substan- 
 tially necessary to give the jury jurisdiction is, that 
 a previous agreement for the purchase cannot be 
 made. Hence, where the clause conferring the ju- 
 risdiction (p) runs in the usual form, all that need 
 appear on the face of the inquisition is the bare cir- 
 •cumstance of recourse having been had by the com- 
 pany to the compulsory process provided by the 
 -act, viz. by summoning a jury and proceeding to 
 judgment in the mode prescribed by the act, as this 
 in itself affords a necessary inference that no previous 
 agreement for the purchase could be made. ( p) To 
 make this appear, where, as is usually the case, the 
 warrant is annexed to the inquisition and therein 
 referred to as so annexed, the two documents may 
 be considered as one entire proceeding, and any de- 
 ficiency existing in the one may be aided by refer- 
 ence to the other, {q) 
 
 275. From what has been said, it follows that in 
 general it constitutes no objection to the inquisition 
 that it fails to mention the notice to treat, or the 
 notice of the inquisition ; or in case of the property 
 in question, or any part of it, having been omitted 
 
 (p) As to provisions of Lands Clauses Consolidation Act 
 ^8 Vict. c. 18) on this point, see act, s. 21 et seq., post, App. 
 
 (y) Taylor v. Clemson, 2 A. & E. N. S. 1030; S. C. 2 G. 
 & D. 346 ; 3 Railw. Cas. 65.
 
 906 Compamj as constituted wider the Act. 
 
 in the schedule of the act by mistake and so certified 
 by two justices, that no statement of the certificate 
 appears therein ; (r) the effect of such certificate 
 being to extend the operation of the statute to the 
 lands, &c. included in the certificate, and to place 
 them in the same situation as if they had been in- 
 serted in the original schedule, (j) 
 
 576. In like manner, no compliance need be shown 
 on the face of an inquisition with a subsequent 
 and independent provision of the act which in sub- 
 stance operates as a defeasance of the compulsory 
 powers conferred by the act, but it ought to come 
 by way of answer from the other side ; (s) as, for 
 instance, where there is in an act a separate section 
 prescribing as a necessary preliminary to the exer- 
 cise by the company of their compulsory powers of 
 taking land, that the whole capital be first sub- 
 scribed, an inquisition taken under such act is not 
 void for the want of an averment that this has been 
 done, (s) 
 
 277. Where the statute prescribes no regular 
 form for an inquisition, the usual enactment (t) that 
 such inquisitions shall be kept among the records of 
 sessions, and shall be deemed records, does not 
 render it necessary to draw them up with the for- 
 mality required in setting out the judgment of an 
 inferior court. (?<) 
 
 (r) Ante, p.205, 11.(5). 
 
 (s) Doe d. Payne v. The Bristol and Exeter Hailway Company, 
 2 Railw. Cas. 94 ; 6. C. 6 M. & W. 320. 
 
 (f) As to provision of Lands Clauses Consolidation Act 
 (8 Vict. c. 18,) on this head, see act, s. 50, post, App. 
 
 (u) See judgment of Littledale, J., in Reg. v. The Trustees of 
 Swansea Harbour, 8 A, & E. 439.
 
 Compensation. 207 
 
 278. We have lastly to consider the effect of the 
 inquisition, (a) and on what interests it must be 
 taken to operate. To determine this point we must, 
 it seems, consider what were the materials laid be- 
 fore the jury in order to their forming their decision ; 
 what by the precept they were called on to do ; and, 
 the purport of the inquisition. 
 
 Where it appears clearly and definitely on the face 
 of the proceedings what interests were under the 
 consideration of the jury in estimating the amount of 
 compensation, those and those only will be considered 
 as covered by the sum awarded ; as, for instance, 
 where a plan was submitted to the jury, marking a 
 particular road as a right to be preserved, it was 
 held that they must be taken to have assessed the 
 damages on the supposition that the road was to be 
 preserved, there being no evidence that any thing 
 was laid before the jury on either side for the pur- 
 pose of intimating to them that they were to value 
 the rest of the property on the supposition of the 
 road being taken away. (?/) So where the inqui- 
 sition on the face of it professes to award compen- 
 sation for a particular description of injury, it will 
 not be considered to embrace another ground of 
 injury which is not the subject of compensation 
 
 (x) Where the land of a person incapable of consenting is 
 taken by a company, and its value found by an inquisition, this 
 is not a conversion of the property so as to alter its nature or 
 quality in respect of devolution ; but the compensation money 
 devolves as the land itself would have done ; Midland Counties 
 Railway Company v. Ostein, 22 Law Journ. Ch. 209 ; S. C, 1 
 Coll. 74. 
 
 (^y) Kemp v. The London and Brighton Railway Company, 1 
 Railw. Cas. 506. See also Rex v. The Nottingham Old Water 
 Works Company, 6 A. & E. 355.
 
 208 Company as constituted under the Act, 
 
 under the provisions of the act ; even though evi- 
 dence of the existence of the latter have been ad- 
 duced before the jury, if this may have been done 
 to give the sheriff and jury jurisdiction over the 
 case. (2) 
 
 279. Where the verdict of the jury has not been 
 recorded, parol evidence is admissible of their find- 
 ing, and of the grounds on which it proceeded ; as, 
 for instance, to show that in a particular case the 
 compensation was estimated upon the supposition of 
 there being a total separation of an estate, and of no 
 communication being made by the company between 
 the parts on either side of the railway, (a) 
 
 280. Where other Side the Moving Party, (b) 
 Secondly, of the case where the other side and not 
 the company is the active party, and the one by 
 whom the process prescribed by the act for settling 
 the amount of compensation in cases of dispute is 
 sought to be set in motion. In this case the party's 
 
 Jirst step is to give the company notice of his claim, (c) 
 The main requisites of this notice would seem to be 
 much the same as those of a notice given by the 
 
 (s) Coriigallx. The London and Blackivall Railway Company, 
 21 Law Journ. C. P. 216 ; 5. C. 5 M. & Gr. 219. 
 
 (a) Manning v. The Eastern Counties Railway Company, 22 
 Law Journ. Exch. 265 ; S. C. 12 M. & W. 237. 
 
 (6) As to method of proceediug, &c. by party claiming com- 
 pensation under Lands Clauses Consolidation Act, see act, s. 68, 
 post, App. 
 
 (c) Under Eastern Counties Railway Acts notice not neces- 
 sary before applying to magistrate to assess compensation, in 
 cases where by those acts jurisdiction given to magistrates, and 
 mandamus accordingly granted to magistrate to hear case, which 
 he had dismissed for want of proof of such notice : Reg. v. Bing- 
 ham, 3 Railw. Cas. 390.
 
 Compensation. 209 
 
 company. Thus where a party sought to compel a 
 company to take certain premises as being situate 
 within a given distance of the railway, &c. and the 
 notice, after giving the company information of his ■ 
 interest in the premises, and stating them to be 
 within the requisite distance, &c. required a certain 
 sum as the price of the house, and another as com- 
 pensation in respect of loss, it was held to put for- 
 ward the party's claim correctly, (c?) In the next 
 place he must request the company to issue their 
 precept for the summoning of a jury in order to 
 assess the damages ; if upon this th'e company resist 
 making compensation, he may then apply to the 
 Court of Queen's Bench for a mandamus to the 
 company to take the necessary steps ibr the assess- 
 ment of the compensation. 
 
 281. Where the company are allowed to take pos- 
 session of the land in the first instance, the applica- 
 tion for a mandamus for the above purpose must be 
 made within a reasonable time afterwards, or it may 
 not be granted, especially if the owner have another 
 remedy by ejectment, (e) 
 
 282. Provision as to giving Bond. A railway act 
 usually provides that a party under such circum- 
 stances shall, at his own cost, before the company 
 shall be obliged to issue their warrant to summon a 
 jury, enter into a bond to prosecute the complaint 
 and pay his proportion of the costs ; or, in case the 
 warrant is issued without the bond having been 
 entered into, the company may give notice requiring 
 
 (d) Walker v. London and Blackmail Railway Company, 3 
 A. & E.N. S. 744. 
 
 (e) Rei V. Stainforth and Keadby Canal Company, 1 M. & 
 S. 32.
 
 210 Company as constituted vnder the Act. 
 
 the same to be done before commencing the inquiry. 
 Under this provision it would seem to be discre- 
 tionary with the company to demand a bond or not, 
 *as they please. In the absence consequently of any 
 demand on the part of the company, the entering 
 into the bond is not a condition precedent to an 
 application by the other party for a mandamus to 
 the company to issue their warrant for the summon- 
 ing of a jury. (/) 
 
 283. Sometimes, in default {g) of the company 
 issuing their precept to the sheriff within a given 
 time, after they have been requested so to do by the 
 other party, the act empowers such party himself to 
 address a request to the sheriff to summon a jury. 
 This request should correspond in all material re- 
 spects with the party's prior notice, (/t) 
 
 That the officer to whom the request is addressed, 
 in pursuance of the above provision, is a share- 
 holder in the company, seems to constitute no objec- 
 tion to the proceedings, even though it is expressly 
 guarded against in the ordinary case of the precept 
 being issued by the company ; unless, indeed, the 
 provision made in the latter case is clearly intended 
 by the legislature to include the one under con- 
 sideration. (?) 
 
 (_/") Reg. V. The North Union Railivay Com'pany, 1 Railw. 
 Cas.729.. 
 
 (g) As to remedy of party in this case under Lands Clauses 
 Consolidation Act, (8 Vict. c. 18,) see act, s. 68, post, App. 
 
 (/i) As to what held an immaterial variance, and as to the 
 sufficiency of such a request, though it did not state correctly the 
 question to be referred to the jury, see Walker v. London and 
 Blackwall Itailway Company, ubi supra. 
 
 (i) Corrigall v. The London and Blackwall Railway Company, 
 21 Law Journ. C. P. 209 ; S. C. 5 M. & Gr. 219.
 
 Compensation. 211 
 
 V. — Of moving for a New Trial, Certiorari to remove 
 and quash Inquisition, ^-c. 
 
 284. Where the sheriff or other presiding officer 
 by mistake directs the jury that the claimant's case 
 is not within the act, and they so find accordingly, 
 and are discharged, a mandamus lies to the sheriff, 
 &c. to execute the precept ; but the party moving 
 for the rule cannot in such case have his costs, the 
 necessity for the rule arising from the mistake of 
 the judge, {k) 
 
 285. Where the act directs that the verdict of the 
 jury and the judgment thereon shall be final and 
 conclusive, the other party cannot move for a new 
 trial, even though the undersheriff have excluded 
 from the consideration of the jury one ground of 
 damage, and the jury have found a verdict against 
 the evidence. As this cannot be done directly, so 
 neither can it indirectly. The court accordingly has, 
 under such circumstances, refused to grant a man- 
 damus to the company to issue a fresh precept. (I) 
 
 286. Where the inquisition is defective, it may be 
 removed by writ of certiorari into the Court of 
 Queen's Bench, and there quashed. This supposes 
 that the writ is not taken away by statute, (wi) 
 
 \\.—Ofthe Title. 
 
 287. Upon the amount of the compensation money 
 being fixed, either by the agreement of the parties 
 
 (k) Reg. V. Sherif of Middlesex, 22 Law Journ. Q. B. 14 ; 
 5. C. 3 Railw. Cas. 396. 
 
 (I) Reg. V. Eastern Counties Railway Covipaiiy, 21 Law 
 Journ. Q. B. 271 ; S. C. 3 Railw. Cas. 468. 
 
 (m) As to the writ of certiorari, see Cap. 7, post.
 
 212 Company as constituted under the Act. 
 
 or by the verdict of the jury, it is then for the land- 
 owner to make out his title to the satisfaction of the 
 company. If he fails to do so, (n) the company, 
 under the usual provisions of a railway act, become 
 entitled to pay the money into the Bank of England. 
 The property upon this is made to vest in the com- 
 pany without any conveyance from the owner, the 
 facts amounting to a statutory conveyance, (o) 
 
 288. Where the company are compellable under 
 their act to purchase certain property, which is 
 therein described as " the property of A. B.," this 
 cannot, it should seem, be construed to amount to a 
 parliamentary confirmation of the party's title, so as 
 to preclude the company from disputing the same, 
 and to oblige them absolutely to pay him the pur- 
 chase money whether he be really entitled to it or 
 not. (p) 
 
 VII. — Of the Conveyance. 
 
 289. A good title to the land, &c. in question 
 being made out to the satisfaction of the company, 
 there comes next to be considered the conveyance. 
 The form of this is usually prescribed by the sta- 
 tute, (q) Where a party is unwilling, &c. to con- 
 
 («) Under Lands Clauses Consolidation Act (8 Vict. c. 18), 
 promoters in such case empowered to execute deed poll, where- 
 upon property made to vest in them. See act, s. 75 and s. 77, 
 post, A pp. 
 
 (o) See Bruce v. Willis, 11 A. & E. 463 ; S. C. 3 P. cc D. 
 220. 
 
 (p) Peniieii v. Great Watern Railway Compatiy, 1 Horn & 
 H.247. 
 
 (g) As to provisions of Lands Clauses Consolidation Act 
 (8 Vict. c. 18) on this point, see act, s. 81, post, App.
 
 Compensation. 213 
 
 vey, (r) the statute usually empowers the company 
 to pay the compensation money into the Bank of 
 England. The effect (r) of this, under the usual 
 provisions of a railway act, is to vest the property 
 in the company as absolutely as if it had been con- 
 veyed by the owner, and so to dispense with the 
 necessity of any conveyance by the latter. (*) 
 
 290. If the owner dies before making any con- 
 veyance, or before the payment of the money into 
 the bank, his heir or devisee may nevertheless be 
 compelled to convey the land, inasmuch as it is 
 bound by the prior contract or assessment, as the 
 case may be. 
 
 291. Where in such a case the land is left to de- 
 scend to infants, or is devised in strict settlement, 
 &c., so that under the limitations contained in the 
 will there is no one capable of making a conveyance 
 to the company, the company must institute a suit in 
 chancery in order to obtain a conveyance, (f) And 
 it makes no difference whether there has been an 
 
 (?•) See Lands Clauses Consolidation Act, (8 Vict. c. 18,) 
 ss. 73, 76, post, App., as to this point ; promoters of railway in 
 such case empowered to execute deed poll, whereupon property 
 made to vest in them ; see ib. s. 75 and s. 77. As to effect of 
 conveyance by parties under such act, see ib. s. 81 ; and of deed 
 poll by promoters, ib. s. 75 and 77. Promoters empowered to 
 purchase interests in land, purchase whereof omitted by mistake, 
 ib. s. 124 et seq. 
 
 (s) See Bruce v. Willis, 11 A. & E. 463 ; S. C. 3 P. & D. 
 220. 
 
 (() Midland Counties Railway Company y. Oiwin, 22 Law 
 Jour. Ch. 209 ; S. C. i Coll. 74 ; Midland Counties Railway 
 Company v. Wescomb, 2 Railway Cas. 211 ; S. C. 11 Sim. 57 ; 
 Easter7i Counties Railway Company v. Tufnell, 3 Railway Cas. 
 133.
 
 214 Company as constituted under the Act. 
 
 agreement for the purchase between the company 
 and the deceased owner, or the value has been as- 
 sessed by a jury under the compulsory process given 
 by the act ; in either case the deceased owner is a 
 vendor, and the infant heir, &c. a trustee within the 
 meaning of the statute 1 Will. 4, c. 60. (u) 
 
 VIII, — Of the Payment of the Purchase Money, and 
 the entry upon Lands, SfC. 
 
 292. In treating of this subject it is proposed to 
 consider, first, the time ; secondly, the mode ; tliirdly, 
 the effect of payment ; fourthly, the remedies for en- 
 forcing such payment ; and, lastly, the ulterior dis- 
 position of the money where it is paid into the bank. 
 
 293. First, then, of the time of payment. The pay- 
 ment or tender of the sum agreed on or assessed (x) 
 by the jury, is in general made a condition prece- 
 dent to the vesting of the property in the company, 
 or to their being entitled to enter thereupon. Ac- 
 cordingly, if they take possession of the property 
 while this remains undone without consent of the 
 owner, it is illegal, and entitles the proprietor to 
 apply to a court of equity for relief, (y) In case, 
 however, of a prior existing agreement between the 
 parties for the purchase of the property in ques- 
 tion, the owner can not in general require to have 
 
 (ji) Seenote(t), p. 213. 
 
 (i) As to provisions of Ltnds Clauses Consolidation Act 
 (8 Vict. c. 18) on this point, see act, s. 84, et seq. post, App. 
 Promoters liable to penaltj' for wilfully entering on lands, &:c. 
 without consent of owner before payment, &c. of purchase money, 
 &c., see ib. s. 89. 
 
 ()/) Robertson v. The Great Western Railway Company, 1 
 Railw. Cas. 459 ; Jones v. The Great Western Railway Company, 
 1 Railw. Cas. 684.
 
 Compensation. 215 
 
 the purchase money paid to himself, but only into 
 the court to which the application is made, it being a 
 case of specific performance, and not a case within 
 the act.(;:) 
 
 294. Secondly. Of the mode of payment. The 
 proper mode of payment in general is to hand over 
 the money to the party interested in the premises. 
 It may, however, happen that this party is out of 
 the way, or labours under some incapacity, or neg- 
 lects or refuses to convey or to make out a good 
 title, or is unable so to do, (a) &c. To provide 
 against such contingencies, which otherwise might 
 present an insuperable obstacle to the execution of 
 the imdertaking, a power is usually given to the 
 company in any such case to pay the money into the 
 Bank of England, and thereupon the property is 
 made to vest in them just the same as in case of an 
 immediate payment to the owner. , In order to 
 entitle themselves to exercise this power, they must 
 follow the provisions of the act strictly. (6) But 
 
 (s) Hyde V. The Great Western Railway Company, 1 Railvv. 
 Cas. 277. 
 
 (a) As to provisions of Lands Clauses Cousolidation Act 
 (8 Vict. c. 18) on this head, see act, s. 69 — 79, post, App. 
 
 (ft) An act of parliament establishing a railway company pro- 
 vided that, if the owner of any land required by the company 
 should refuse to accept the purchase money or compensation 
 awarded, or should fail to make out a title to such land, to the 
 satisfaction of the company, or if such owner should be out of the 
 kingdom or not be to be found or be unknown, or should refuse 
 to convey such land, &c., the company might pay the purchase 
 or compensation money into the Bank of England in the name of 
 the accountant-general of the Court of Chancery, whereupon all 
 the interest of the owner in those lands should vest in the com- 
 pany. By subsequent sections the company were to give notice 
 to the parties interested of their intention to treat for lands ; and.
 
 216 Company as constituted under the Act. 
 
 where the circumstances of a case are such as evince 
 an intention in the owner to set the company at 
 defiance, this is clearly a case within the above pro- 
 vision, and the company are consequently justified 
 in paying the money into court ; as, for instance, 
 
 if any dift'erence should arise, or no agreement should be come 
 to respecting the lands or compensation money to be given for 
 them, or if such owner should by reason of absence be incapable 
 of treating for them, or should fail to disclose or prove his title to 
 them, or should be incapable of making any agreement or neces- 
 sary conveyance, the amount of the compensation money should 
 be settled by the jury. The company offered one A., who was 
 possessed of a leasehold interest in lands, a certain sum, and oa 
 his refusing to accept it, had the amount of compensation money 
 assessed by a valuation jury. After the verdict had been delivered, 
 A.'s attorney said to the defendants, " you shall never construct 
 your railway until you come to some arrangement satisfactory to 
 A." The company, however, without calling on the plaintiff to- 
 make out his titl^to the lands in question, paid the compensation 
 money into the Bank in the manner prescribed by the statute, 
 and commenced constructing the railway on them, whereupon 
 the plaintiff brought his action of ejectment. On this state of 
 facts, Cresswell, J., at the trial, told the jury that, in order to 
 entitle the company to pay the assessed compensation money 
 into the Bank, and take possession of the plaintiff's land, they 
 should, after that assessment was made, have called on him to 
 make out his title. A verdict was accordingly given for the 
 plaintiff, v/ith leave reserved to. the defendants to move the court 
 to enter it for them. Upon the defendants moving in pursuance 
 of that leave, the court upheld the ruling of the learned judge at 
 the trial, being of opinion that the provision empowering the com- 
 pany to pay the compensation into the Bank was prospective, 
 and pointed to a failure to make out a title, ,&;c. subsequently to 
 the compensation being assessed by the jury, and that conse- 
 quently the company ought' to have called on the plaintiff after 
 the assessment by the jury to make out his title to the land ; 
 Doe d. Hutchinson v. Mancliester, Bury and Rosseiidale liailuaif 
 Company, 9 Jurist, 949.
 
 Compensation . 217 
 
 where an act comes into operation reviving an old 
 assessment, and the next day a provisional order of 
 the Court of Exchequer is obtained to pay the 
 money into the bank, and yet the owner, with a 
 knowledge of all this, lies by for ten days after the 
 passing of the act, and suffers the money to be paid 
 in accordingly ; this, it seems, is reasonable evidence 
 for the jury to show neglect to make out a title, and 
 that the party means to keep the company at arm's 
 length ; it consequently justifies the latter in paying 
 the money into court, (c) 
 
 295. So likewise, in case of a disputed title, the 
 company are justified in paying the money into 
 court ; as if, after an agreement for the purchase of 
 premises between the company and the supposed 
 owner, a third party steps in and disputes the 
 vendor's title to sell without his concurrence ; tliis 
 would seem to be a case where, under the usual 
 provisions of a railway act, the company are justified 
 in paying the money into court ; and where, conse- 
 quently, they take the whole interest in the premises, 
 notwithstanding the state of the title, (c?) 
 
 296. In case of the owner refusing or being unable 
 to convey, &c., the act usually empowers the com- 
 pany to order the money to be paid (e) into the Bank 
 of England in the name, Skc. of the accountant- 
 general of the Court of Chancery, to be placed to 
 
 (c) Doed. Payne v. Bristol and Exeter Railway Cniii}ui>nj,2 
 Railw. Cas. 75 ; S. C. 6 M. cV W. 320. 
 
 (d) El' parte Issaitcliaitd, 3 Y. & Coll. 721. See also judg- 
 ment of Alderson, B. in Cator v. The Croydon Canal Company, 
 4 Y. & Coll. 405. 
 
 (e) See Lands Clauses Consolidation Act (8 Vict. c. 18), s. 
 76, post, App. 
 
 L
 
 218 Company as constituted under the Act. 
 
 his account to the credit of the parties interested 
 (describing them as well as the company can). To 
 satisfy this provision there need not be an express 
 order of the company to pay the money ; but it is 
 enough that the directors give the order ; this they 
 may do through the medium of a cheque drawn by 
 the directors on the bankers of the company, ex- 
 pressive on its face of the trusts on which it is given ; 
 as where two directors drew a cheque payable to 
 the other party or bearer, with a memorandum on 
 the face of it that it should be paid into the Bank of 
 England under the directions of the agents of the 
 company's solicitor, (y) 
 
 297. Assuming the payment to be in accordance 
 with the provisions of the act, we have, thirdly, to 
 consider its effect (g) on the property. A railway 
 act usually provides, that, on payment or tender of 
 the purchase or compensation money, either to the 
 party or parties interested or into the bank, as the 
 case may be, the property shall vest in the company, 
 and that all estates tail, estates in reversion and 
 remainder, &c. therein shall be barred. Where all 
 substantial interests in the premises are included in 
 and covered by the payment, the fact of a dry legal 
 right being left outstanding is no bar to the vesting 
 of the entire property in the company. 
 
 298. Leaseholders for a long term of years, but 
 who had underlet to a person wlio had been ex- 
 pelled for a breach of covenant, and who had given 
 
 (/) Taylor v. Clemson, 2 A. £c E. N. S. 1030 j S. C. 2 G. 6c 
 D. 346; 3 Railw. Cas. 65. 
 
 (g) As to the effect of conveyance under Lands Clauses Con- 
 solidation Act, (8 Vict. c. 18) and as to interests omitted by mis- 
 take, to be purchased, see ante, p. 213, n. (?■).
 
 Compensation . 219 
 
 up the lease, but had executed no deed of surrender, 
 agreed with the company for the sale of the pre- 
 mises ; the under-lessee having disputed the title of 
 the parties to sell, the company paid the money 
 into court : it was held that the whole interest in the 
 premises vested in the company notwithstanding the 
 defective surrender. (/«) So where a person inte- 
 rested in a long term of years in certain property, 
 but in regard of which no rent vvas reserved, con- 
 tracted by mistake to sell the fee simple to the com- 
 pany, it was held that the reversioner was barred as 
 against the company, and that the transaction was 
 equivalent to a sale of the fee. (i) 
 
 299. Fourthly. Of the enforcing payment of the 
 compensation money ; and herein, first, of the case 
 where the owner of the land, ^-c. is entitled to receive 
 the money ; second, of the case where, according to 
 the provisions of the company's act, it is to be paid 
 into the bank. In the first case, where there is an 
 agreement between the parties, the owner's remedy 
 must of course be upon the agreement. If recourse 
 has been had to the compulsory process given by 
 the act, then, supposing that act points out any par- 
 ticular remedy, this is what the party must adopt ; if 
 not, still if the act contains the ordinary provision, 
 making the verdict of the jury, and the consequent 
 judgment a record, the proper remedy would seem 
 to be by an action of debt upon tlie judgment; (A;) 
 though a mandamus has been held to lie in a like 
 
 (/i) Ex parte IssauchaiidS Y. & C. 721. 
 (i) Ex parte Jones, 4 Y. & C. 466. 
 
 (?c) Corrigail v. London and Blackmail Railway Company, 5 
 M. & Gr. 219 ; S. C. 21 Law Jour. C. P. 216. 
 
 L 2
 
 220 Company as constituted under the Act. 
 
 case. (/) In such action the plaintiff ought, it seems, 
 both to aver and prove that he made a good title to 
 the satisfaction of the company and was ready and 
 willing to convey, &c., or what is equivalent there- 
 to. ()«) He must, moreover, show a default in pay- 
 ment on the part of the company pursuant to the 
 act.(n) 
 
 300. Even where the act speaks of certain land 
 (which the company are compellable to purchase) 
 as belonging to a particular party, and gives to the 
 party entitled to the purchase money a right of 
 action for the same in default of payment within a 
 specified time after the amount is ascertained either 
 by the agreement of the parties or the verdict of a 
 jury ; yet this cannot be construed as amounting to 
 a conclusive admission of the party's title^, so as to 
 render it obligatory upon tlie company to pay the 
 money within that time without any further act on 
 the part of the other side to show that he has some- 
 thing to convey to the company for the money. (ii) 
 Putting the most favourable construction on the 
 words that they can possibly bear for the party in- 
 terested, they cannot go beyond this, that the land is 
 prima facie to be considered his property till the 
 contrary is shown, so as to dispense with the 
 necessity of his showing a title in the first instance ; 
 but it still leaves it open to the company to raise the 
 
 (i) Rex V. Nottingham Old Water Works Company, 6 A. & 
 E. 355 ; sed qusere the authority of this case as to this point. 
 See case cited in preceding note. 
 
 (m) See declaration in Corrigal v. London and Biackicall 
 Railway Company, ubi supra. 
 
 (n) Penney v. Great Western Railway Company, 1 Horn & 
 H.247.
 
 Compensation. 221 
 
 question by their pleadings, whether such party has 
 any title or not. (o) 
 
 301. In the second case, if the company refuse to 
 pay the money into the bank pursuant to their act, 
 the party interested may apply to the Court of 
 Queen's Bench for a mandamus to compel them to 
 do so. To support such an application, however, 
 the party must cleai'ly establish that the case is one 
 where, pursuant to the requisitions of the act, the 
 money ought to be so paid in ; as, for instance, 
 where he goes upon the ground of his inability to 
 make out a title, he must clearly establish that he is 
 unable to do so. (p) On the discussion of a rule 
 nisi for a mandamus in this latter case, the propriety 
 of a mandamus to compel the original assessment of 
 the compensation cannot be questioned ; (q) and in 
 default of an affidavit to the contrary, the regularity 
 of all proceedings essential to the verdict is to be 
 presumed, (q) It is no ground for refusing the ap- 
 plication, that, after the assessment, &c. and during 
 the dispute on the title, the period limited for the 
 exercise of the company's compulsory powers has 
 expired, (p). 
 
 302. So a party may, it seems, have his remedy in 
 equity, where a company being bound under the pro- 
 visions of their act to pay compensation money into 
 the court of chanceiy. Sec. instead of doing so retain 
 it in their own hands, for the company cannot in 
 equity be allowed to place themselves in a better 
 
 (o) Pennei) v. Great Western Railway Company, 1 Horn & 
 H. 247. 
 
 (;;) Reg. v. Deptford Pier Company, 8 A. & E. 910. 
 
 (q) See Rex v. Nottingham Old Water Works Company, 6 A. 
 & E. 355.
 
 222 Company as constituted under the\Act. 
 
 situation, than they would have been, if they had 
 discharged their duty under the act of parliament, 
 or to alter the position of the rightful claimant. 
 Now had the company chosen to act as they ought 
 to have done, and paid the money into the court of 
 chancery, that court would have become the trustee 
 for the rightful claimant ; consequently as to him, 
 the company retaining the money must be consi- 
 dered as his trustee, exactly as the court of chancery 
 would have been if the money had been depo- 
 sited with the court. (?•) And it may be strongly 
 questioned whether in such a case, which starts 
 with the proposition that one side is cestui que trust 
 and the other trustee, any length of time would be 
 a bar to the lawful claimant, it being admitted that 
 the company have assets, and that the money has 
 not been paid, but remains in their hands. At any 
 rate as the bar from lapse of time proceeds in a 
 court of equity upon the laches of the party in not 
 claiming sooner, it cannot be applicable to a case, in 
 which the legislature permits a bargain with an un- 
 ascertained person, and where there is no laches 
 after he is ascertained. The party to maintain his 
 suit must of course be prepared to prove that he 
 is entitled to the compensation, (s) 
 
 303. Lastly, Of the ulterior disposition of the com- 
 pensation money, where it is paid into the bank. 
 The cases where a railway act usually authorizes 
 this mode of payment, are as we have seen mainly 
 reducible to two : first, where there is a failure to 
 convey or make out a title to the satisfaction of the 
 
 (7) Judgment of Alderson, B. in Cator v. Croydon CanaL 
 Company, 4 Y. & Coll. 419. 
 
 (s) Cator V. Croydon Caiml Company, 4 Y. & Coll. 405.
 
 Compensation. 223 
 
 comjmmj, &c. ; the second, where the party in pos- 
 session has a limited interest only in the premises, or 
 labours under some incapacity, &c. In the former(t) 
 case the act usually empowers the Court of Chan- 
 cery, on application of the party laying claim to the 
 money, or any part of it, to make the requisite 
 orders touching its future disposition, providing at 
 the same time that the party in possession of the 
 property at the time of the purchase by the com- 
 pany shall be presumed to be entitled to such 
 money, until the contrary shall be shown to the 
 satisfaction of the court. Under the above provi- 
 sion, where the right to the money is uncontested, 
 the party in possession would seem entitled to have 
 the money paid out of court to him on his own affi- 
 davit of title, (m) 
 
 304. Where there are several parties who lay 
 claim to a share of the money, their several interests 
 may be adjusted on petition to the court ; or the 
 court will, if necessary, direct an issue to ascertain 
 both who are the parties really interested in the 
 property, and the proportionate value of their 
 several interests, {x) 
 
 305. Where the party in possession is under any 
 of the incapacities (y) contemplated by the act, &c. the 
 usual provision is, that the money shall by order of 
 
 (t) As to provisions of Lands Clauses Consolidation Act (8 
 Vict. c. 18), on this subject, see Act, ss. 78, 79, post, App. 
 
 (u) Ex parte Grainge, 3 Y. &c Coll. 62 ; see also n. (a) and 
 n. (6), ibid. 66. 
 
 (i) Ex pai-te Issauchaud, 3 Y. & Coll. 721. See also Ex 
 parte Gardner, 4 Y. & Coll. 503, 
 
 (y) See Lands Clauses Consolidation Act (8 Vict. c. 18), 
 ss. 69, 70.
 
 224 Company as constituted under the Act, 
 
 the Court of Chancery, made upon petition of the 
 party, be applied either in discharge of some bur- 
 then incident to the estate of that j^artij, or in the 
 purchase of other lands to be settled to the like uses 
 as the lands taken by the company, and that, in the 
 interim and until this can be done, the money may 
 by order of the court, upon application thereto, be 
 invested in the funds, &c., the dividends to be pay- 
 able by the order of the court to the party who 
 would for the time being have been entitled to the 
 rents and profits of the lands to be purchased. The 
 court would seem inclined to put a liberal construc- 
 tion on the superintending powers thus conferred 
 upon them, and accordingly to sanction by virtue of 
 it any application of the money, which, though not 
 strictly within the words, is yet substantially in ad- 
 vancement of the intention of the act. Where there- 
 fore a sum of money is in court, previously to its 
 being laid out in lands to be settled to the like uses, 
 the court will order it to be applied in new erec- 
 tions, (z) So where an opportunity for an advan- 
 tageous purchase, beyond the amount of the money 
 in court, presents itself, the court will lend its aid 
 towards the accomplishment of such purchase, and 
 accordingly will direct the extra costs to be paid out 
 of the fund in court, (a) And a tenant for life, who 
 has redeemed the land tax before the passing of the 
 company's act, will be permitted to reimburse him- 
 self out of the proceeds of the land purchased of 
 him by the company (6). 
 
 (z) Ex parte Shaw, 4 Y. & C. 506. 
 (o) Ex parte Newton, 4 Y. & C. 518. 
 (6) Ei parte Nnrthwick, 1 V. & C. 166.
 
 Costs. 225 
 
 IX. Costs. 
 
 306. It is proposed in the next place to treat of 
 costs (c) incidental to the taking of lands for the 
 purpose of a railway, and the provisions made by 
 the different railway acts on this subject. Every 
 railway act, it is clear, ought to contain a series of 
 provisions on this head, calculated to afford to the 
 owners of property a fair and reasonable indemnity 
 against the class of costs in question, as otherwise it 
 would be exposing a party to have his property 
 diminished by reason of its being taken from him 
 for the purposes of the company. Such provisions 
 accordingly are to be construed liberally, and in 
 favour of the parties whose interests they are in- 
 tended to protect. In considering the question of 
 costs, it is proposed to take 1st, the simplest case, 
 where only the ordinary costs attending a purchase 
 are in question ; 2ndly, where recourse having been 
 had to the compulsory 'process provided by the act 
 for ascertaining the amount of the purchase or com- 
 pensation money, it is sought to recover the costs 
 
 (c) For question as to taxation of costs, and whether agree- 
 ment referring to costs meant to regulate only the description of 
 costs to be borne by the Company, or the mode of ascertaining 
 the amount also, so as to exclude the provisions of a subsequent 
 act on the subject, see In re Great Western Railway Company's 
 Amendment Act, and In re Thomas Rhodes, 8 Jurist, 1109 ; S. C. 
 23 Law Journ. Ch. 97 ; 3 Railw. Cas. 516 ; motion under sub- 
 sequent act for order of reference to tax bill of costs refused with 
 costs, on the ground that on an application of thatsort the court had 
 no opportunity of considering the special agreement, nor whether 
 it provided any mode for ascertaining the costs or not. lb. As to 
 taxation of costs of inquiry under Lands Clauses Consolidation 
 Act (8 Vict. c. 18), see Act, s.5'2, post, App. ; same as to costs of 
 conveyances, see ib. s. 83. 
 
 L 5
 
 226 Company as constituted under the Act. 
 
 thereby occasioned ; Srdly, where the money having 
 been paid into the hank, the costs attending its sub- 
 sequent disposition are in dispute ; 4thly, where 
 the company, in order to complete their title, are 
 necessitated to have recourse to a court of equity. 
 
 307. 1st, Where a railway act provides that " the 
 contract, sale and conveyance" {d) shall be made at 
 the expense of the company, these words must it 
 seems be construed to cover the costs of making out 
 the title, (e) And it makes no difference that these 
 costs are provided for in express terms by a subse- 
 quent act. (e) 
 
 308. 2dly, Of the costs incidental to the holding of 
 the inquisition, &c. {f) In considering the effects of 
 the usual provision on this head, it may be proper to 
 show, first, in what cases it gives costs ; secondly, to 
 what description of costs it applies. First, there are 
 three cases in general contemplated by the above 
 enactment, first, where the jury shall give the same 
 or a greater sum than the company have previously 
 offered ; secondly, where the verdict of the jurj-^ is 
 given for a less sum, and thirdly, where, by reason 
 of absence in foreign parts, or from any other cause 
 or disability not provided for in the act, any person 
 shall be prevented from treating or agreeing as con- 
 
 (d) As to prorisions of Lands Clauses Consolidation Act (8 
 Vict. c. 18), on subject of costs of conveyances, &c. see act, s. 82, 
 post, App. 
 
 (e) £i "parte The Trustees of John Addey's Charity, In re 
 The London and Greenwich Railway Company, 3 Railw. Cas. 
 119 ; S. C. 3 Hare, 22. 
 
 (/) As to provisions of Lands Clauses Consolidation Act 
 (8 Vict. c. 18), on subject of costs of inquiry, see act, ss. 51 — 
 53, post, App.
 
 Costs. 227 
 
 templated by the act. This third head does not 
 comprehend the case of a simple nonagreement, on 
 the ground that the company will not treat or agree, 
 but some cause or disability independent of the mere 
 agreement of the parties themselves. Hence it fol- 
 lows, that a party who himself enforces the proceed- 
 ings before the sheriff's jury, in default of the com- 
 pany doing so, cannot claim his costs under the 
 above provision, (g) 
 
 309. The costs, yb?" which the above provision pur- 
 ports to jjrovide, in general, are those of summoning 
 and returning the jury, taking the verdict, and the 
 summoning and attendance of the witnesses. (A) 
 These words cannot, it seems, be taken to include 
 the general costs of the inquisition, such as solicitor's 
 charges for letters and attendances, sums paid to 
 surveyors for plans or for making valuations, fees 
 of counsel, costs of drawing briefs and the like. 
 And although the clause giving the jury process, 
 and regulating the inquiry, enacts, that in such in- 
 quiry the party claiming compensation shall be 
 deemed plaintiff, and entitled to the same rights and 
 privileges as plaintiffs in action at law, yet this does 
 not carry the party's right to costs any further, in- 
 asmuch as it must be understood as intended simply 
 to regulate the course of the proceedings, to remove 
 doubts concerning the right to begin, and to show 
 in other respects how the inquisition should be con- 
 ducted, (i) But where the act provides for the 
 
 (g) Corrigall v. The London and Blackmail Railuay Com- 
 pany, 21 Law Journ. C. P. 209 ; S. C. 5 M. & Gr. 219. See 
 further as to right to costs, Ex parte Turner, 1 W. W. & H. 305. 
 
 (fe) See Lands Clauses Consolidation Act, s. 52. 
 
 (i) Rex V. Gardner, 6 A. & E. 112; Reg. v. The Sheriff of 
 Warwickshire, 2 Railw. Cas. 661.
 
 228 Company as constituted under the Act. 
 
 costs not only of summoning and returning the jury, 
 &c. but also of the inquest, those words would it 
 seems be sufficiently large to carry the general costs 
 of the inquiry. {¥) 
 
 310. Sdly, Of the costs incidental to the subsequent 
 disposition (/) of money which has been paid into the 
 bank under the provisions of a railway act. There 
 are we have seen two cases in which it is usually 
 provided by a railway act that the money shall be 
 paid into court, first, where the title is in dispute, 
 &c. ; second, where the party in possession of the 
 property at the time of the purchase, &c. is under 
 some disability. Although in the former case the 
 court are not expressly empowered to give costs, 
 yet they may, it seems, do so under the general 
 power vested in them under the usual provisions of 
 a railway act in cases of disputed titles, viz. that of 
 making any order in the premises that they think 
 equitable or just, {m) And clearly they must be 
 taken to have a jurisdiction for this purpose (which 
 it is accordingly their duty to exercise, unless a 
 special case is made out), where a railway act, after 
 providing for cases of disability, goes on to enact 
 that in other cases of the purchase money being paid 
 into court under the act, it shall be lawful for the 
 court to order the reasonable expenses of any party 
 or parties in procuring the same to be paid out of 
 court, together with the necessary costs of obtaining 
 the proper orders, to be paid by the company. Under 
 
 {k) Rex V. The Justices of the City of York, 1 A. & E, 828. 
 But costs of surveyors as such do not come under this head. 
 
 (i) As to provisions of Lands Clauses Consolidation Act 
 (8 Vict. c. 18), on subject of costs in cases of money deposited, 
 see act, s. 80, post, App. 
 
 (m) See Ex parte Angell, 4 Y. & C. 496.
 
 Costs. 229 
 
 the above provision accordingly, where a party ap- 
 plied to have paid over to him the residue of certain 
 purchase money, which had been reserved in court 
 to await the decision of contested claims, {n) and to 
 which he was rightfully entitled, the company were 
 held liable to pay the costs of the application. 
 
 311. The usual provision in the second case we 
 have already had occasion to notice. It obviously 
 involves various questions about costs, viz., (1st,) 
 about the costs of the interim investment of the 
 money in the funds, and of the cepplication for that 
 purpose, &c. ; (2ndly,) of the jxtyment of the divi- 
 dends of those funds, and the corresponding applica- 
 tion, &c. ; (3rdly,) of the permanent investment, and 
 the application for that purpose, &c. First, then, 
 where the act gives the " expenses of all purchases 
 to be made by virtue of the act ; this has been held 
 to include the expenses occasioned by the interim in- 
 vestment in the funds, (o) So where the act speaks 
 of the expenses of the reinvestment of the purchase- 
 money in land, or other disposition of the same, the 
 company have been held liable to pay the costs of 
 the interim investment, (p) But where the act speaks 
 simply of costs, in consequence of the purchase, {q) 
 or of the costs of such purchases (V) (thereby mean- 
 ing the ultimate purchases of lands to be settled to 
 the like uses), or of the expenses of all purchases 
 
 (n) E.T jjorte Gardiner, re The Eastern Counties Railway Com' 
 pany, 3 Railw. Cas. 117. 
 
 (o) Ex parte Bishop of Durham, 3 Y. & C. 690 ; Ex parte 
 Bishop if Ely, ibid. 691, n. (ft) ; sed quaere; see n. (s), post, 
 p. 230. 
 
 (p) Ex parte Otisbw, 1 Y. & C. 553. 
 
 (g) Ex parte Hirst, 4 Y. & C. 468. 
 
 (r) Ex parte Taylor, 1 Y. & C. 229.
 
 230 Company as constituted under the Act. 
 
 from time to time to be made in pursuance of the 
 act, and of the order sanctioning such purchases, (5) 
 this has been held not to carry the costs in question. 
 
 312. (2ndly.) As to the costs of the payment of 
 the dividends of the stock, and the application for 
 that purpose. Where an act empowered the court 
 to order the reasonable costs, &c. of the investment 
 and reinvestment, together with the necessary costs, 
 &c. of obtaining the proper orders, and of all other 
 proceedings for such purposes, and for the payment 
 of the dividends, this was held to embrace the costs 
 of the order for payment of the dividends, but not 
 the costs of the payment, (t) 
 
 313. (3rdly.) As to the costs of the ultimate in- 
 vestment of the purchase money, &c. These would 
 clearly be included under the terms of an act, which 
 speaks of the expenses of all purchases to4}e made 
 by virtue of the act. (m) So, notwithstanding an 
 act make express provision for costs only in cases 
 where the purchase money, &c. is to be laid out in 
 the purchase of land to be settled to the like uses, a 
 party may yet claim under it the costs of an appli- 
 
 (s) Ji^x parte Molynem, in re Manchester and Liverpool Rail- 
 way Company, 9 Jurist, 786, cited post, p. 231. See also Ex parte 
 Cooke, in re Liverpool and Manchester Railway Company, 3 
 Railw. Cas. 136. 
 
 (t) Ex parte Athoi-pe, 3 Y. ik C. 396; see also n. (a), ibid. 
 See also Mitchell v. Newell, in re Manchester and Leeds Railway 
 Act, 3 R. Cas. p. 515, where, upon construction of the 157th sec- 
 tion of the Manchester and Leeds Railway Act, it was held, that 
 costs of payment of dividends were not to be borne by the com- 
 pany. 
 
 (u) See Ex parte Bishop of Durham, 3 Y. & C. 690. But 
 see In re London Bridge Acts, 13 Sim. 176. There A. being a 
 tenant for life of an estate with remainder to his sons succes- 
 sively in tail male, had entered into an agreement with B. by
 
 Costs. 231 
 
 cation to have such money applied in the redemption 
 of the land tax, &c. as being a case within the spirit 
 and meaning of the act (x) ; and the same of an ap- 
 plication to have the money applied in the discharge 
 of incumbrances. (?/) Where the purchase money, 
 &c. is not invested at once, but piecemeal, it is dis- 
 cretionary with the court to allow or not the costs of 
 
 which it was stipulated that A. should procure an act of parlia- 
 ment to enable him to sell the estate to B., and that B. should 
 bear all the expenses incident to and consequent upon his pro- 
 posal to purchase the estate, together with the expense of obtain- 
 ing the act, of preparing the abstract, and showing a title to the 
 estate, and of and about making and completing the sale and 
 conveyance to him, together with the expense of the agreement 
 and all other expenses whatsoever of A., in consequence of the 
 sale, or arising out of or in anywise relating thereto, or to the 
 proposal of B. A, accordingly obtained an act for the sale 
 of the estate to B., which directed the purchase money to be 
 invested in lands to be settled to the same uses as the estate stood 
 limited to. It was held that B. was not bound to pay the ex- 
 penses of the investment. 
 
 (x) Ex parte Northwick, 1 Y. & C. 166. 
 
 (y) Ex parte Traford, 2 Y. & C. 522. And an infant tenant 
 in tail, who, on coming of age, barred the entail of the money in 
 the bank, has been allowed his costs of applying to the court to 
 have the money paid over to him. — Ex parte Marshall, in re 
 Great Western Railway Company, 1845. 
 
 But upon the same company's acts, it has been held that the 
 company are not liable for the costs, &c. attendant upon the 
 obtaining the compensation money out of court for the purpose 
 of erecting a new vicarage house, though the original act autho- 
 rized the house being built with the money. Ex parte Madon in 
 re Great Western Railway Company, 9 Jur. 74. And where an 
 act spoke of the expenses of all purchases in pursuance of the act, 
 and of the necessary orders for that purpose, it was held not to 
 apply to the costs of a petition to have a portion of the purchase 
 money in the bank paid out of court, and the residue invested 
 in stock. Ex parte Molyneux, in re Manchester and Liverpool 
 Railway Company, 9 Jur. 786,
 
 232 Company as constituted tinder the Act. 
 
 the successive investments, &c. necessary for that 
 purpose ; but in general the court seem inclined to 
 limit the allowance to two. (m) Supposing, however, 
 that the purchase money is very large, the costs of 
 a third reinvestment will, it seems, be allowed. (?j) 
 
 314. Assuming that a railway act makes pro- 
 vision for the costs of the reinvestment of the pur- 
 chase money, &c., it remains to be considered what 
 costs are included in the inovision. The costs of the 
 master's report, as to the title of the lands to be 
 settled to the like uses, would seem to be so. Ac- 
 cordingly a court will, on the construction of the 
 general clauses in i*ailvvay acts, fix the company 
 with the above costs, (o) But extraordinary costs, 
 occasioned by the peculiar nature of the proposed 
 reinvestment, cannot, it seems, be taken to fall 
 imder the provision in question ; as, for instance, 
 where a contract was made for a purchase beyond 
 the amount of the money in court, and it was 
 arranged that the excess of costs, occasioned by the 
 
 (m) Ex parte Provost, &;c. of Eton College, 3 Railw. Cas. 271 ; 
 S. C. 6 Jur. 908 ; in Ex parte Trustees of Waste Lands of Box- 
 moor, in re Birmingham Railway Company, costs of two pur- 
 chases were allowed ; 8 Jur. 307 ; S. C. 3 Railw. Cas. 513. 
 
 (n) In re Saint Katherine's Dock Company, 3 Railw. Cas. 
 514. 
 
 (a) Ex parte Marsh, 5 Jur. 502, a.d. 1841. And under the 
 act enabling the corporation of the Trinity House to purchase 
 property, and in certain cases to pay the purchase money into 
 court to be laid out in stock for the benefit of the parties entitled, 
 (the act providing that the " costs of the investment of the pur- 
 chase money, &c. should be paid by the corporation,") the 
 broker's commmission on the purchase of stock was held to be a 
 part of the costs of investment to be borne by the corporation ; 
 In re stat. 6 8; 7 Will. 4, Ex parte Corporation of Trinity 
 House, 3 Hare, 95.
 
 Costs. 233 
 
 larger purchase, should be secured by a charge on 
 the newly purchased property, the master having 
 reported against this contract, and exceptions to his 
 report having been taken and allowed, the court dis- 
 allowed as against the company all costs occasioned 
 by the peculiarity of the contract including the costs 
 of the exceptions. (^;) 
 
 315, It is proposed to speak in the last place of 
 extraordinary costs incidental to those cases where 
 the company, in order to complete their title, are 
 obliged to go into a court of equity, such as the 
 costs of a suit necessarily instituted to procure a 
 conveyance of the legal estate, the expenses of a 
 reference to a master to settle conveyances, and the 
 like. These costs must be borne by the party who 
 occasions the necessity for them. Where therefore 
 the owner of property, after agreeing with the com- 
 pany for the purchase, died, leaving it to descend to 
 infants, it was held that the costs of a suit, which 
 the company were necessitated to institute, in order 
 to procure a conveyance of the legal estate, must 
 be defrayed out of the purchase money, (q) And 
 the same where a party died, having devised all his 
 estates in strict settlement ; (r) and it was held to 
 make no difference that an interval of three years 
 had elapsed between the date of the agreement and 
 the death of the deceased, no steps having been 
 taken by either party to complete the purchase, (s) 
 
 (p) Ex parte Newton, 4 Y. & C. 518. 
 
 (9) The Midland Counties Railway Company v. Wescomh, 2 
 Railw. Cas. 211; S. C. 11 Sim. 57. 
 
 (r) The Eastern Counties Railway Company v. Tuffnell, 3 
 Railw. Cas. 133. 
 
 (s) Ibid.
 
 ( 234 ) 
 
 Sect. 3. — Of the Company viewed in its Internal 
 Relations. 
 
 Sub-Sect. I. — Of the Individual Shareholders. 
 
 II. — Of the General Meetings of the Company. 
 III.— Of the Directors. 
 IV. — Of the Officers, Servants, &c. 
 
 v.— Of Bye Laws. 
 VI.— Of Registration. 
 VIL— Of the Books, Records, &c. of the Company. 
 
 Sub-Sect. 1. — Of the Individual Shareholders. 
 
 1. How a party may become a shareholder. 
 
 2. Of the rights, duties and liabilities of shareholders. 
 
 3. How a party's character of shareholder may be determined. 
 
 316. 1. How a party may become a shareholder. 
 In general there are two ways in which a party may 
 become a shareholder, (a) viz. either by subscription 
 or transfer. A bona fide transfer of scrip, [b) though 
 prior to the passing of the act, is, it seems, so far 
 effectual for this purpose, as to give a right to be re- 
 gistered upon the passing of the act ; so likewise a 
 transfer of shares from an original subscriber posterior 
 to the passing of the act, but prior to the sealing of 
 the register of the proprietors agreeably to the act,(c) 
 
 (a) As to who are shareholders within the meaning of Com- 
 panies Clauses Consolidation Act, 8 Vict. c. 16, see act, s. 3, 
 post, App., and s. 8, ib. 
 
 (6) See ante, p. 45 et seq., as to transfer of scrip, &c. before 
 passing of act. 
 
 (c) See Sheffield, Ashton-under-Lnne and Manchester Rail- 
 way Compariy v. Woodcock, 2 Railw. Cas. 522 ; S. C. 7 M. & 
 W. 574. 
 
 I
 
 Of the Individual Shareholders. 235 
 
 although the transferror be never registered as a 
 proprietor. But a party claiming in the latter way, 
 viz. by transfer, must in general, in order to entitle 
 himself to the privileges of a shareholder, procure 
 himself to be registered under the act. (d) 
 
 317. 2. Of the rights, duties and liabilities of the 
 individual shareholders. Under the ordinary pro- 
 visions of a railway act, these are mainly such as 
 might fairly be expected from the relation in which 
 they stand to the company, the former being the 
 contributors to the joint stock of money which is 
 entrusted to the management and disposal of the 
 latter, in order to the obtaining a profit for the 
 benefit of the individual contributors. The indi- 
 vidual subscriber accordingly, while he is bound to 
 pay the amount of his subscription, or such part of 
 it as may from time to time be required for the pur- 
 poses of the act. has at the same time a right to 
 insist on the joint stock, composed of such subscrip- 
 tions, being applied to the purposes for which it is 
 so entrusted, and, in case of any surplus profits 
 being thereby produced, to share. in those profits 
 according to the proportion in which he has con- 
 tributed to the capital stock of the company. For 
 the better enabling him to enforce the above rights, 
 he is in general empowered by the act to be present 
 at and take a part in the deliberations of all general 
 meetings of the company, and to vote in the deter- 
 mination of all questions thereat, &c. 
 
 318. The above obligation, viz. that of paying 
 the amount of his subscription according to the 
 
 (rf) See Companies Clauses Consolidation Act, 8 Vict. c. 16, 
 s. 15, post, App., and ss. 18, 19, ib.
 
 236 Company as constituted under the Act. 
 
 provisions of the act, is the sole one, it may be re- 
 marked, that is ordinarily incidental to the character 
 of a shareholder, the shareholders being distinct per- 
 sons from the corporate body, and therefore being 
 no more responsible for the acts of the company than 
 an utter stranger, unless indeed where a direct per- 
 sonal interference in the concerns of the company can 
 be brought home to them. There is however one 
 case where the Companies Clauses Consolidation 
 Act (e) gives creditors of a company established 
 under that act a direct remedy against the share- 
 holders, viz., where execution having been issued 
 against the property or effects of the company suffi- 
 cient cannot be found whereon to levy, in this case 
 the creditor is empowered by the above act to issue 
 execution against any of the shareholders to the 
 extent of their shares respectively in the capital of 
 the company not then paid up. If by means of such 
 execution any shareholder is made to pay more than 
 the amount then due from him in respect of calls, he 
 is forthwith to be reimbursed such additional sum 
 by the directors out of the funds of the company. 
 
 319. 3. Of the determination of a party's cha- 
 racter as shareholder. In general a shareholder 
 cannot put oft" his character as such in any other 
 way than that pointed out by the act, viz. by a 
 transfer, accompanied with all the formalities pre- 
 scribed by the legislature. Even where a party, 
 during the progress of the bill for the formation of 
 a company, and before it is yet passed into an act, 
 expressly renounces before the committee all further 
 connection with the undertaking, and procures his 
 name to be omitted out of the act in consequence, 
 (e) See ss. 36, 37, post, App.
 
 General Assemblies of the Company. 237 
 
 yet this cannot have the effect of discharging'him 
 from his engagement as a subscriber, and its'* inci- 
 dental obligations, at least where it is done without 
 the consent of the rest of the subscribers (/). 
 
 Sub-Sect. 2. — Of the General Assemblies of the 
 Comjjany. (g) 
 
 320. There are several points that here present 
 themselves for consideration. 1st, as to the mode 
 of convening meetings ; 2ndly, as to the time ; 3dly, 
 as to the persons entitled to vote ; 4thly, as to the 
 mode of voting ; 5thly, as to the number of pro- 
 prietors requisite to constitute a valid meeting ; 
 6thly, as to the powers of general assemblies. With 
 regard to the five first points, it may be remarked 
 that the requisites of the company's act in the above 
 respects are intended to operate as so many safe- 
 guards for the interests of the general body of the 
 proprietors, and therefore they must be observed in 
 all essential respects, (h) in order to give validity to 
 a meeting. (/') Prima facie, however, a compliance 
 with the above requisites is to be presumed ; and 
 therefore it lies upon the company, if they seek to 
 
 (/) Kidwelly Canal Company v. Rahy, 2 Price, 93. 
 
 (w) As to the provisions of the Companies Clauses Consolida- 
 tion Act on this point, see act, ss. 66—80, post, App. 
 
 (h) As to how far provisions of act touching the holding of 
 special general meetings imperative or only directory, so as to 
 admit of being dispensed with under particular exigencies of the 
 society, see Foa v. Harbottle, 2 Hare, 495. 
 
 (i) See ante, pp. 70, 71.
 
 238 Company as constituted under the Act. 
 
 avail themselves of any irregularity in those respects, 
 to give strict proof of the same. (A;) 
 
 ■321, A meeting is not to be deemed invalid, 
 although^ to make up the requisite number of share- 
 holders, the votes of certain parties must be taken 
 into account/ who have taken shai"es for the benefit 
 of the company, and upon a secret understanding 
 that they are to be exonerated from all personal 
 liability hi respect of them.(^) 
 
 322. Gthly. Of the ^oroers(?«) of general meetings. 
 1st. In the general assembly of subscribers is vested 
 the entire legislative power ; 2ndly, the appoint- 
 ment of directors ; 3rdlj-, the supreme control and 
 management of the affairs of the company gene- 
 rally ; and 4thly, the power of ascertaining and 
 determining who are legitimate members of the com- 
 pany, &c. As necessarily incident to the above 
 power of appointing directors, they must likewise, 
 it is conceived, be taken to have that of removing 
 any director for reasonable cause, and this with- 
 out any express grant conferring on them such 
 power. (?z) 
 
 323. From this brief sketch of the powers of a 
 general meeting, it would seem to follow that ordi- 
 narily, where the subscribers are dissatisfied with 
 the management of the company's concerns, or the 
 conduct of the governing body, the proper tribunal 
 to which to appeal in the first instance is a general 
 
 (k) See ante, p. 71. 
 
 (<) See ante, p. 41. 
 
 (ni) As to what powers of Company not exercisable by di- 
 rectors under Companies Clauses Consolidation Act, see act, 
 s, 91, post, App. 
 
 (n) 2 Kyd on Corporations, 50.
 
 General Assemblies of the Company. 239 
 
 meeting, (o) Though, if the company is in such a 
 state of disorganization as virtually amounts to a(p) 
 tlissolution of the company, or the dissentient par- 
 ties, after making all due efforts on their part to set 
 the proprietors in motion, and to procure a meeting 
 to be convened, cannot succeed in so doing, that 
 may justify them in carrying the matter into a court 
 of justice. 
 
 Sub-Sect. 3. — Of the Directors, {q) 
 
 324. We have to treat in the next place, of the 
 executive council or directors of the company, and 
 herein, 1st, of the mode of their appointment ; 2nd, 
 of their qualification ; 3rd, of their number ; 4th, of 
 their tenure of office; 5th, of their remuneration; 
 6th, of their powers, duties, and responsibilities. 
 
 (o) See judgment of Tindal, C. J. in London and Brighton 
 Railway Company v. Wilson, 6 Bing. N. C. 139; and of Den- 
 man, C. J. in Reg. V. Eastern Coiuiiies Railway Company, 10 A. 
 & E. 549. In the case of the alleged misconduct of a director of 
 an insurance company, the court refused to interfere by con- 
 tinuing an injunction ; the deed by which the company was con- 
 stituted giving the plaintiffs, who were directors, powers of regu- 
 lation, of which they had not availed themselves. Ellison v. 
 Bignold, 2 J. & W. 503. 
 
 (p) See judgment of Vice-Chancellor in Foss v. Harbottle, 
 2 Hare, 461. 
 
 {q) As to the provisions of the Companies Clauses Consoli- 
 dation Act (8 Vict. c. 16) on the subject of the proceedings of 
 the directors of railway companies, and more particularly of the 
 manner of their entering into contracts on behalf of the Com- 
 pany, and of the effect of any informality in their appointment, 
 &c. as such, see act, ss. 92 — 99, post, App.
 
 240 Company as constituted under the Act. 
 
 825. 1st. As to the mode of appointing directors. (r^ 
 The usual provision on this head is, that they shall 
 be chosen by the proprietors at a general meet- 
 ing of the company. If, pending his term of ser- 
 vice, a director dies, resigns, or otherwise vacates 
 his office, or ceases to be a director, the remaining 
 directors usually have a power given them of sup- 
 plying the vacancy. 
 
 326. 2dly. A railway act usually requires that a 
 party, in order to be eligible (s) for a director, shall 
 be possessed of a certain number of shares in the un- 
 dertaking, and also that he shall not hold any office 
 or place of trust under, or be concerned in any con- 
 tract with, the company. This latter brancli of the 
 clause only applies to contracts made with the com- 
 pany in the execution of their undertaking. It does 
 not therefore preclude from being directors of a rail- 
 way company the members of a banking company, 
 who are the bankeis and treasurers of the railway 
 company. (i) 
 
 327. 3rdly. Of the number (u) of the directors. 
 The statute itself usually prescribes what this shall 
 be ; to guard against casual vacancies in the body, it 
 
 (r) As to provisions of Companies Clauses Consolidation Act 
 (8 Vict. c. 16,) on this head, see ss. 83, 84, post, App. 
 
 (s) As to provisions of Companies Clauses Consolidation Act 
 (8 Vict. c. 16) on this head, see act, s. 85 — 87, post, App. 
 
 (() The Sheffield, Aihtou-under-Lyne and Manchester Rail- 
 way Company v. Woodcock, 2 Railw. Cas. 522 ; S. C. 7 M. & 
 W. 574. 
 
 (u) As to provisions of Companies Clauses Consolidation Act 
 (8 Vict. c. 16) on this head, see act, ss. 81, 82, 89, post, 
 App.
 
 Of the Directors. 241 
 
 also gives a power to the remaining directors to fill 
 up all such vacancies as they occur. The provision 
 thus made for a certain number of directors is how- 
 ever, it should seem, to be construed as matter of 
 direction only, and not of condition, as something 
 which affects only the internal regulation and ma- 
 nagement of the affairs of the company and not its 
 external concerns. (r^) Supposing therefore a party 
 were dissatisfied with the proceedings of the com- 
 pany because there were not the full number of di- 
 rectors, possibly it might be competent for him to. 
 move for a mandamus to compel the directors to 
 suppl}'^ the vacancies, but semhle, it would afford no 
 answer, in the mouth of a shareholder, to an action 
 brought by the company, on a claim duly vested in 
 them.(</) 
 
 32(S. 4thly. O^ the tenure of office. {r) The act usu- 
 ally provides for the directors retiring by rotation. 
 This rotation is so contrived as to secure to each a 
 certain definite period of service. Pending this pe- 
 riod, however, a director may, it is conceived, be 
 removed for an offence against his official duty, or 
 generally for any cause that shows him to be inca- 
 pable or unfit to execute the office of a director. («) 
 So likewise, where, by the constitution of the com- 
 pany, a qualification is necessary, in order to enable 
 persons to act as directors, a party may cease to 
 
 (q) See judgment of Maule, J. in The Thames Haven Dock 
 and Railwaii Company v. Rose, 3 Railw. Cas. 177; «S. C. 4 
 M. & Gr. 552. See also Benson v. Hadjield, 4 Hare, 32. 
 
 (»•) As to provisions of Companies Clauses Consolidation Act 
 (8 Vict. c. 16) on this head, see act, ss. 86, 88, post, App. 
 
 (s) See 2 Kyd ou Corp. 50 et .seq.
 
 242 Comjmni/ as constituted under the Act. 
 
 be a director by the loss of the qualification, (s) 
 as for instance, where the qualification consists in a 
 party's being owner of a certain number of shares ; 
 bankruptcy would necessarily operate to determine 
 his character of director, (inasmuch as it would de- 
 prive him of his shares,) though a mere equitable 
 mortgage of shares would not, it seems, have this 
 effect, («) 
 
 329. 5thly, Of the rejnMwerafiow(M) of the directors. 
 In general, the act constituting the company makes 
 no express provision for the remuneration of the di- 
 rectors, but leaves it entirely in the discretion of the 
 company. In such a case a director can claim no 
 recompense for his service, unless by virtue of some 
 contract or resolution of the company under their 
 common seal. A mere vote of remuneration, not 
 under the common seal, amounts to no more than 
 an announcement to the directors for the time being, 
 that a certain gratuity shall be given to them in pro- 
 portion to the quantum of attendance. It cannot, 
 consequently in general be construed to vest in the 
 directors any right to such remuneration as against 
 the company, but leaves it a mere matter of favour 
 or compliment.(a;) 
 
 (s) Fhelpsv. Lyle, 10 A. iic E. 116, judgment of Lord Den- 
 man, C. J. and Littledale and Patteson, Js. ; see also Wil- 
 son V. Wilson, 6 Scott, 540, where, under provisions of com- 
 pany's deed of settlement, director held incapable to act, having 
 absconded to America, under circumstances evidencing intention 
 of not returning, so as to admit of the company's fiUing up his 
 place. 
 
 (t) Ctimnmig v. Prescott, 2 Y. & Coll. 496. 
 
 {u) See as to this point Companies Clauses Consolidation Act 
 (8 Yict. c.16, s. 91), post, App. 
 
 (x) Duiiston V. The Imperial Gas Light Company, 3 B. & Ad. 
 129.
 
 Of the Directors. 243 
 
 330. 6thly. Of the powers, (c) duties, and respon- 
 sibilities of the directors, and herein, 1st, of their 
 powers. According to the usual provisions of a rail- 
 way act, the directors are intrusted with the general 
 powers of management necessary for carrying into 
 effect the design of the company's institution, and 
 for the due conduct of the affairs of the company, 
 saving of course such as are specially reserved to 
 the general assemblies of the company. Powers so 
 extensive would clearly authorize the dii'ectors to 
 contract for the performance of works, or for the 
 supply of goods so far as the purposes of the rail- 
 way may require ; or again, to appoint officers 
 and servants, and allow them a proper recompense 
 (though these two latter powers are in general ex- 
 pressly given by statute). So likewise they may 
 make calls, and, where they are authorized by a prior 
 resolution of the company, mortgage or charge the 
 undertaking and tolls, or grant an annuity by way 
 of retiring pension to an officer of the company 
 entitled to a salary, but wishing to retire on account 
 of ill health. (/) But the powers of the directors 
 would not, it is conceived, (g) extend to the raising 
 money by way of loan, or to the accepting, drawing, 
 or indorsing bills in the name of the company, such 
 
 (e) As to the powers of directors under the Companies 
 Clauses Consolidation Act, (8 Vict. c. 16,) see act, ss. 90, 91, 
 post, App. 
 
 (/) Clarke v. The Imperiai Gas Company, 4 B. & Ad. 324. 
 
 (g) See Stat. 7 & 8 Vict. c. 85, sects. 19, 20, 21, post, Ap- 
 pendix, with respect to loan notes, &c. ; the 19th sect, expressly 
 prohibits the future issuing of loan notes, &c. otherwise than 
 under the provisions of some act. 
 M 2
 
 244 Company as constituted under the Act. 
 
 modes of dealing being in general clearly unneces- 
 sary for the management of the concerns of the 
 company. 
 
 331. Effect of mortgage. (Ji) Assuming the di- 
 rectors to be called on by a resolution of a general 
 meeting to exercise the above power of mortgaging, 
 a question naturally suggests itself as to the effect 
 of such mortgage, and the rights that the mortgagee 
 acquires under it. This must of course depend on 
 the particular form of the instrument, which is 
 usually prescribed by the act. A mortgage of the 
 undertaking and tolls cannot, it seems, be construed 
 to include the land of the company. (?) It follows 
 that, under such a security, the mortgagee has no 
 equity to restrain other parties from using their 
 legal remedies against such land. (Jc) 
 
 332. Of the duties of the directors.il) The em- 
 ployment of a director is of a mixed nature ; it par- 
 takes of the nature of a public office, but at the 
 same time is not an employment that affects the 
 public government. Directors therefore are most 
 properly agents to those who employ them in this 
 trust, and empower them to superintend the affairs 
 of the corporation. Consequently, if a person choose 
 to accept the office, he is bound to exercise it with 
 fidelity and reasonable diligence, and it is no excuse 
 
 Qi) As to power of mortgaging under the Companies Clauses 
 Consolidation Act, (8 Vict. c. 16,) see act, s. 38, post, App. 
 
 (i) Doe d. Myatt v. The St. Helen's and Runcorn Gap Rait- 
 way Company, 2 A. & E. N. S. 364 ; S. C. 2 Railw. Cas. 756. 
 
 (A;) Perkins v. Pritchard, 3 Railw. Cas. 95 ; S. C. nom. Per- 
 hins V. Deptford Pier Company, 13 Sim. 277. 
 
 (/) As to duty of making calls, see post, Sect. 4, Sub-sect. 3.
 
 Of the Directors. 245 
 
 to say that he has no benefit from it, and that it is 
 merely honorary. (?«) 
 
 iiS.'i. Of the Uabiiities of the directors. These may 
 be regarded in two hghts ; (1st,) as regards the com- 
 pany ; and (2nd,) as regards the world in general. 
 (1st,) where the acts of directors are within their 
 authority, even though they be attended with bad 
 consequences, it is difficult to determine that these 
 are breaches of trust. But if they can be fixed 
 with acts of omission or commission, there it may 
 be otherwise. To instance, in non-attendance ; if 
 some directors are guilty of gross non-attendance, 
 and leave the management entirely to others, they 
 may thereby render themselves guilty of the breaches 
 of trust that are committed by those others, (n) 
 And where there appears to be supine negligence in 
 all, by which a gross complicated loss happens, all 
 may be held guilty. (o) A fortiori, where directors 
 are guilty of any gross and positive acts of mis- 
 feasance, such as a misapplication of the funds of 
 the company to their own private purposes, or of 
 otherwise confederating together to obtain some 
 private good at the expense of the company, they 
 are liable to naake good the loss which the company 
 sustain in consequence, (p) So, if parties connive 
 
 (m) Charitable Corporation v. Sutton, 2 Atk. 400. 
 
 (n) Ibid. 
 
 (o) Ibid. But where a bill is filed for relief in respect of a 
 fraud, alleged to have been committed by several persons, it is 
 not necessary that all the persons charged with the fraud should 
 be made defendants; Seddon v, ConneLl, 10 Sim. 79. 
 
 (p) Ibid. ; see also Fois v. HarhoUle, 2 Hare, 461 ; Att. Gen. 
 V. Wilson, Cr. & Ph. 1. So for making false entries and returns 
 in corporate books, serable, an action would lie against them at 
 the suit of the company ; see Imperial Gas Company v. Clarke, 
 7 Bing. 95.
 
 246 Company as constituted under the Act. 
 
 at such conduct in other members of the governing 
 body, and do not make use of tlie powers vested in 
 them by the act, to prevent the ill consequences 
 arising from the confederacy, &c. {q). 
 
 334. (2dly.) Of the liability of the directors to the 
 world in general, in regard of acts done by them on 
 behalf of the company. The act usually provides 
 that they shall not be personally responsible for 
 acts legally done by them as directors. (>) This 
 protection cannot of course be construed to extend 
 to any wilfully tortious act of the directors, nor to 
 cases where they voluntarily take upon themselves 
 to act beyond the scope (5) of their statutory powers 
 as directors, or where, though the matter lies within 
 the general limits of their authority, yet the cir- 
 cumstances of the case show them to have acted in 
 their individual characters, and not in their official 
 capacity, (t) 
 
 Sub-Sect. L — Of the Officers, (u) Servants, ^c. of 
 the Company. 
 
 335. Under the usual provisions of a railway act, 
 
 (g) Charitable Corporation v. Stitton, 2 Atk. 400. 
 
 (r) As to provisions of Companies Clauses Consolidation 
 Act (8 Vict. c. 16) on this point, see act, s. 100. 
 
 (s) A director however Ls not, it seems, personally liable in 
 such a case, where the other side has the same knowledge of the 
 laws and constitution of the company as the director himself ; 
 Tyrrell v. Woolleu, 1 M. & Gr. 820, per Bosanquet, J. 
 
 (t) See Tyrrell v. Wuolley, 1 M. 6c Gr. 822 ; Bult v. Mor- 
 veil, 12 A. 6c E. 748; Fox v. Frith, 10 M. & W, 131 ; Ha^i- 
 cock V. Hodgson, 4 Bing. 269 ; Dewers v. Pike, Mur. Sc H. 131. 
 
 (m) As to accountability of officers under Companies Clauses 
 Consolidation Act, (8 Vict. c. 16,) and remedies to ^ifocce same, 
 &c., see act, ss. 109 — 114, post, App.
 
 Of the Officers, ^c. 247 
 
 the general power of appointing and dismissing all 
 officers, servants, &c., and of determining the amount 
 of their remuneration, is vested in the directors. 
 Generally speaking, the officers, servants, &c. of a 
 railway company, would seem to have the same 
 rights and to be subject to the like liabilities as any 
 ordinary person standing in the same position. In 
 certain respects, however, the liabilities of the officers, 
 &c., of railway companies are more extensive, inas- 
 much as for particular breaches of duty they are 
 liable to be punished criminally, (x) And this 
 extends generally to all persons employed on the 
 railway. 
 
 Sub-Sect. 5. — Of Bye Lans. 
 
 1 . Extent of Power of making Bye Laws. 
 
 2. Requisites of Bye Laws. 
 
 336. 1st. Extent of power of making bye laws.{^y) 
 In general a railway act empowers the company to 
 make bye laws and regulations for the management 
 of the undertaking, the government of its officers 
 and servants, &c. This gift of an express power 
 implies a negative, viz. that they shall not make bye 
 laws in other cases, (z) Independently therefore of 
 
 (i) See statute 3 & 4 Vict. c. 97, ss. 13, 14, and statute 
 
 5 & 6 Vict. c. 55, ss. 17, 18, Appendix, and post. Cap. 6. 
 
 (i/) As to power of making bye laws, &c. under Companies 
 Clauses Consolidation Act, (8 Vict. c. 16,) see act, ss. 124 — 127, 
 post, App. ; under Railways Clauses Consolidation Act, (8 Vict, 
 c. 20,) see act, ss. 108 — 1 11, post, App. 
 
 ('2) Child V. Hudson's Bay Company, 2 P. Will. 209. See 
 also Calder and Hebble Navigation Compajiy v. Pilling, 14 M. 
 
 6 W. 76 ; there it appeared that the company had a power
 
 248 Cotnpany as constituted under the Act. 
 
 any objection on the score of contravening their act 
 of parliament, a railway company cannot, it should 
 seem, under the usual provisions of a railway com- 
 pany on this head, make a bye law for altering what 
 is a fundamental part of the constitution of the 
 company, such as the amount of capital, the number 
 or value of the shares, &c. («) 
 
 337. 2nd. Of the requisites of bye laws. In the 
 first place, they must be within the scope of the 
 company's authority ; 2dly, they must be under the 
 common seal of the company, and duly published 
 according to the provisions of the company's act ; 
 Srdly, they must not be repugnant to the general law 
 of the land, or the provisions of the (6) company's 
 
 under an act of parliament to make bye laws, &c. for the good 
 jovernment of the company, and for the good and orderly using 
 of the navigation, &c., and also for the well governing of the 
 bargemen, &c. connected with it, &c. ; it was held that the act 
 did not authorize the company to make a bye law prohibiting 
 navigation on the canal on Sundays, and that such bye law was 
 illegal and void. 
 
 (a) See Smith v. Goldsworthy, 4 A. & E. N. S. 430. See 
 also judgment of Vice-Chancellor in Ward v. Society of At- 
 tornies, 1 Coll. 370. 
 
 (b) For an instance of this, see Report of Officers of Railway 
 Department for 1842, p. xviii. There it appeared that a company 
 had made a regulation, by which, amongst other things, the 
 quantity of luggage allowed to be taken free of charge by third 
 class passengers was limited to fourteen pounds, being twenty-six 
 pounds less than the minimum prescribed by the company's act. 
 On the attention of the directors being called by the railway 
 department of the Board of Trade to the illegality of this part of 
 the regulation, an assurance was given that the regulation, which 
 was stated to have been introduced through inadvertence, should 
 be immediately corrected.
 
 Of Bye Laws. 249 
 
 act ; and 4thly, they must be laid before (c) the Board 
 of Trade in pursuance of the statute 3 & 4 Vict, 
 c. 97, s. 8, who have power to disallow the same. 
 
 Sub-Sect. 6. — Of Registration, {d) 
 
 1. Of the Foi'mation of a Register of the Shareholders. 
 
 2. Of the Registering the Proceedings of the Company, &c. 
 
 33S. 1st. The formation of a register of the pro- 
 prietors is a (e) duty invariably imposed on a rail- 
 way company by their act of incorporation ; conse- 
 quently for any refusal, express or implied, to regis- 
 ter a bona fide {f) holder of shares, an action, it is 
 conceived, lies against the company at the suit of 
 such holder, {g) To sustain such an action, how- 
 ever, a party ought, it seems, to be prepared to 
 prove his title to the shares, in respect of which he 
 claims to be registered. (//.) If, at the time of the 
 
 (c) See post, Cap. 6, and statute 3 & 4 Vict. c. 97, ss. 8, 9, 
 10, Appendix. 
 
 (rf) As to provision on this head in Companies Clauses Con- 
 solidation Act, (8 Vict. c. 16,) see act, ss.9, 10, post, App. 
 
 (c) Mandamus held to lie to canal company to enter probate 
 of will of deceased shareholder ; Rex v. Worcester Canal Com- 
 pany, 1 M. & Ry. 529; S. C. 7 B. & C. 632, nom. Ex parte 
 Home. 
 
 (f) As to what not sufficient proof of a party having taken 
 shares in a company mala fide, see Daly v. Thompson, 10 M. & 
 \V. 309. 
 
 (§•) It might however be safer to proceed against the registrar 
 or other officer of the company, whose duty it was to register 
 the complainant, and who was the immediate party refusing ; 
 Daly V. Thompson, 10 M. & VV. 309. 
 
 (h) Daly V. Thompson, 10 M. & W. 309. 
 M 5
 
 250 Company as constituted under the Act. 
 
 plaintiff tendering his shares for registration, the 
 number of shares authorized by the act are already 
 entered upon the register, and the register is conse- 
 quently full, this is an answer to the action ; pro- 
 vided, that is to say, that the register has been pro- 
 perly filled, as otherwise it would be allowing the 
 company to take advantage of their own miscon- 
 duct, (i) The party's proper remedy in such a case 
 would seem to be to bring his action against the 
 original managers of the undertaking prior to the 
 passing of the act, for improperly issuing more than 
 the contemplated number of shares, {k) 
 
 339. The company are in general required by 
 their act not simply to form a register of the pro- 
 prietors, in the first instance, but likewise to h-eej) it 
 up by inserting therein the names of all persons who 
 from time to time become entitled to shares in the 
 undertaking. (/) To obviate the difficulty of ascer- 
 taining who those parties are, certain forms are pre- 
 scribed to compel them to come forward, and until 
 they comply with those forms, they are not entitled 
 to share the profits, (m) The provisions on this 
 head being obviously intended for the convenience 
 and security of the company, they do not affect the 
 property in the shares, nor the liabilities ; conse- 
 quently tliere is nothing in them to hinder the com- 
 
 (i) Daly V. Thompson, 10 M. & W. 309. 
 
 (k) Diet, arg., ibid. 
 
 (i) See provisions of Companies Clauses Consolidation Act 
 (8; Vict. c. 16,) on this head, s. 15, post, App., and sect. 
 18, ib. 
 
 (m) Judgment of Lord Chancellor in Fyler v. Fyler, 2 Railw. 
 Cas. 875.
 
 Of Registration . 251' 
 
 pany from treating as a shareholder one who can 
 in reality be shown to be such, (n) 
 
 340, 2dly. Of the registering the proceedings, ^c. 
 of the cojvpany or the directors, (o) This is likewise 
 a public duty ordinarily prescribed by the company's 
 act of incorporation. Where, therefore, a railway 
 company had omitted to enter in their books a re- 
 port of the directors and certain resolutions of the 
 company, by which the same was adopted, the 
 Court of Chancery, on the ground of such omission, 
 allowed a supplemental bill in the nature of a bill of 
 review to be filed against the company, for the pur- 
 pose of bringing before the court such report and 
 resolutions, although, under all the circumstances of 
 the case, they would not have been otherwise dis- 
 posed to grant the a{)plication. {p) 
 
 Sub-Sect. 7. — Of the Books, Records, ^'c, of the 
 Comfany. (q) 
 
 341. In order to give effect to the system of regis- 
 tration that it contemplates, a railway act invariably 
 requires the company to keep certain books, and 
 prescribes the particulars to be entered therein, (r) 
 
 (n) Fyler v. Fyler, ibid. ; London and Brighton Railway 
 Company v. Fairctovgh, 2 Railw. Cas. 544 ; S. C. 2 M. & Gr. 
 674. 
 
 (o) See Companies Clauses Consolidation Act, s. 98, post, App. 
 
 (p) Sheffield Canal Company v. Sheffield and Rotherham Rail' 
 way Company, 23 Law Journ. Ch. 25 ; S. C. 1 Phillips, 484. 
 
 (g) As to the keeping and inspection of accounts under Com- 
 panies Clauses Consolidation Act (8 Vict. c. 16), see act, ss. 
 115—119, post, App. 
 
 (r) As to how far the usual provisions of a railway act oa 
 this head to be held directory or not, see post. Cap. 7.
 
 252 Company as constituted under the Act. 
 
 Such books, even though kept in strict comphance 
 with the act, cannot in general be evidence for the 
 company further than is provided by their act. (s) 
 
 342. The act usually provides for the shareholders 
 having access to the books of the company under 
 certain limitations. A shareholder who neglects to 
 avail himself of this privilege cannot, when sued by 
 the company for calls, compel an inspection of the 
 company's books, at least, where his object is not to 
 enable himself to plead a particular plea, but to dis- 
 cover some ground of defence to the action, {t) 
 
 Sect. 4. — Of the Capital of the Company. 
 
 Sub-Sect. I. — Of the Capital of the Company in general. 
 II. — Of shares. 
 III.— Of Calls. 
 
 Sub-Sect. 1. — Of the Capital of the Company in 
 general. 
 
 .j43. a railway act invariably empowers the com- 
 pany to raise a certain amount of capital by the 
 
 (s) See Hill v. Manchester and Saljord Water Works Com- 
 pany, 5 B. & Ad. 866 ; Clarke v. Imperial Gas Company, 4 B. 
 & Ad. 315. 
 
 (t) Birmingham, Bi'istol and Thames Junction Railway Com- 
 pany V. White, 2 Railw. Cas. 863 ; S. C. 1 A. & E. N. S. 282. 
 As to right of inspection of books of company, and mode of en- 
 forcing such right, &c. see Rex v. Wiltshire Canal Company, 5 
 N. & M. 344, S. C. 3 A. & E. 477 .; Rex v. Trustees of Korth- 
 Leach and Witney Roads, 5 B. &: Ad. 978 ; Fontet v. Basing- 
 stoke Canal Company, 2 Bing. N. C. 370 ; S. C. 2 Scott, 543 ; 
 Imperial Gas Light Company v. Clarke, 7 Bing. 95 ; Rex v. 
 Masters and Wardens of Merchant Tailors' Company, 2 B. 6;: Ad. 
 115 ; Mayor of Southampton v. Graves, 8 T. R. 590.
 
 Of the Capital of the Company. 253 
 
 mutual subscriptions of its members. This capital 
 it divides into shares, which are made to vest in the 
 subscribers according to their respective contribu- 
 tions, and entitle them to a corresponding propor- 
 tionate part of the profits of the undertaking. Such 
 shares are transferable by the proprietor, and in 
 case of his death, bankruptcy, &c., pass to his legal 
 representative. A party accordingly can in general 
 no otherwise become a member of such a company 
 than by himself subscribing to the undertaking, or 
 stepping into the place of an original subscriber ; 
 and it is the peculiarity of what is thus made the 
 title of admission to the company, and the provision 
 it affords for the succession of fresh members, that 
 constitutes one of the main features of these com- 
 panies, and mainly distinguishes them from ordinary 
 corporations. 
 
 .'344. A railway act in general gives a power to 
 the company, not merely to raise a certain fund out 
 of the subscriptions of its members, but likewise to 
 insist on the payment of those subscriptions. The 
 exercise of this power however is subjected to cei'- 
 tain stringent restrictions in favour of the subscri- 
 bers. In the first place, a party is not to be called 
 on to pay the entire amount of his subscription at 
 once and in one entire sum, but only by certain in- 
 stalments and at certain intervals, as the exigencies 
 of the society may require. The company further- 
 more are required, whenever they call for any in- 
 stalment, to give notice thereof to the subscribers, 
 and this in a particular way, and with particular 
 formalities prescribed by the act. And it is only 
 where these various requisites are fully satisfied,
 
 254 Company as constituted under the Act. 
 
 that the company can avail themselves of the reine- 
 dies given by the act for compelling payment from 
 the subscribers. 
 
 Sub-Sect. 2. — Of Shares. 
 
 I. — Of their Nature. 
 II. — Of their Incidents, and herein, 
 
 1st, Of their Capability of Transfer ; 
 
 2dly, Of their Liability to Forfeiture. 
 
 345. I. As TO THE Nature of a Share, (a) It 
 may be defined to be a right to partake, according 
 to the amount of the party's subscription, of the 
 surplus profits obtained from the use and disposal 
 of the capital stock of the company to those pur- 
 poses for which the company is constituted. In 
 general, the act expressly provides that this interest 
 shall be deemed personal property. Independently 
 however of any such enactment, it must, it seems, 
 be so regarded ; and this, notwithstanding it arises 
 in a measure out of realty, it being the surplus profit 
 only that is divisible among the individual share- 
 holders, and the railway, land, buildings, &c., being 
 the mere instruments whereby the joint stock of the 
 company is made to produce that profit, and belong- 
 ing moreover exclusively to the corporate body, 
 which is altogether a separate person from its indi- 
 vidual members. (6) 
 
 346. II. Of the various Properties or Inci- 
 
 (o^ As to nature of shares under Companies Clauses Consoli- 
 dation Act (8 Vict. c. 16), see act, s. 7, post, App. 
 
 (6) Bradley v. Hotdsworth, 3 M. & W. 422; see also Bligh 
 V. Brent, 2 Y. & Coll. 294, and cases there cited.
 
 Of Shares. 255 
 
 DENTS usually annexed to shares in a railway com- 
 pany by the legislature; and herein, 1st, of their 
 CAPABILITY OF ASSIGNMENT. Railway shares are 
 transferable, &c. (c) in three ways ; I. By the act 
 of the owner; II. By the act of the law ; III. By 
 the act of God. The first class of transfers is again 
 distinguishable according to the quality or quantity 
 of interest that passes to the transferee, viz. into 
 assignments, leases and pledges, equitable mortgages 
 and the like. 
 
 347. 1st, then, oi absolute assignments, and herein, 
 1st, of the power of assignment generally ; 2dly, of 
 the contract of sale ; 3rdly, of the conveyance. 1st. 
 Under the usual provisions of a railway act, shares 
 are transferable at the sole will and pleasure of the 
 holder, subject only to this one restriction, viz. that 
 shares are not to be transferred after a call has been 
 made, &c. in respect thereof, unless such call has 
 been paid, (rf) The provisions of railway acts 
 touching registration, not being intended to affect 
 the property (e) in the shares, a transfer is valid, 
 though made by an unregistered proprietor prior to 
 the formation of a register of the proprietors, (f). 
 
 348. 2dly. Of the contract of sale ; and here four 
 points suggest themselves for consideration, the title 
 
 (c) As to transfer of shares under Companies Clauses Conso- 
 lidation Act (8 Vict. c. 1.6), see act, s. 14, et seq. App. 
 
 (d) Under Companies Clauses Consolidation Act, s. 16, 
 transfer not to be made until calls paid. See App, 
 
 (e) See London and Brighton Railway Company v. Fairclough, 
 2 Railw, Cas. 544 ; S. C. 2 M. & Gr. 674. 
 
 (y) Sheffield, Ashton under Lyne and Manchester Railway 
 Company v. Woodcock, 2 Railw. Cas. 522 j S. C, 7 M. & W. 
 574.
 
 256 Company as constituted under the Act. 
 
 and capacity of the vendor, the contract, the rights, 
 duties, and liabilities to which it gives rise, and the 
 remedies incidental to those rights. First, then, of the 
 title and capacity of the intended vendor. A party 
 may enter into a contract for the sale of shares in a 
 railway company, although at the time of the contract 
 he is not possessed of them, nor has entered into any 
 conti-act to purchase them, nor has any reasonable 
 expectation of becoming possessed of them by the 
 time appointed for the delivery of such shares, other- 
 wise than by purchasing them after the making of the 
 contract, the stock-jobbing act not applying to bar- 
 gains for the stock of a railway company, but only 
 for public stock ; {g) but where the other party 
 bargains for a conveyance from the vendor himself, 
 there the latter, it should seem, must take care to 
 acquire a property in the shares by the time ap- 
 pointed for the transfer, so as to be capable of con- 
 veying himself, because under such circumstances the 
 intended transferee must be understood as bargaining 
 for the security of the other's implied covenant for 
 title, which he cannot have, if a different person is 
 owner, and is to convey to him. (Ji) As a general 
 rule, a vendor ought also to take care to pay all 
 calls due before the time fixed for the transfer, as a 
 railway act usually provides that no shares in the 
 
 {g) Uewiit V. Price, 4 M. k Gr. 355; Hibblewhite v. M'Mo- 
 rine, 5 M. & W. 462. But it is otherwise, as it seems, by the 
 French law ; and therefore a contract made in France for the sale 
 of shares in a foreign undertaking cannot, under such circum- 
 stances, be enforced in this counti-y ; Hannuic v. Goldner, 1 1 
 M. & W. 849. 
 
 (/i) Hibblewhite v. M'Morine, 2 Railw. Cas. 66; S. C. 6 M. 
 & W. 200.
 
 Of Shares. 257 
 
 undertaking shall be sold after any call has become 
 payable in respect of such shares unless the full 
 amount of that call has been paid. («) This provi- 
 sion however the purchaser may waive by any 
 agreement or stipulation to that effect, even though 
 it be by parol only, shares in a railway company 
 being neither an interest in land nor goods and mer- 
 chandize, and therefore contracts regarding them 
 not falling within the operation of the statute of 
 frauds, (k) 
 
 349. Secondly. Of the contract ; and herein, 1st, 
 of its requisites ; 2nd, of its form; 3rd, of the rules 
 of construction by which it is governed. The requi- 
 sites of a contract for the sale of railway shares must 
 necessarily be the same as those of an ordinary con- 
 
 (0 See ante, 256, n, (h). 
 
 (fc) Ibid.; see also Humble v. Mitchell, 11 A. & E. 205 ; 
 S. C. 2 Railw. Cas. 70; Bradley v. Holdsworth, 3 M. & W. 
 422 ; Duncuft v. Albrecht, 12 Sim. 189. ' See also Hargreaves 
 V. Parsons, 13 M. & W. 561 ; there the defendant and one P. 
 agreed for the sale by P. to the defendant of the " put or call" 
 of fifty foreign railway shares at a certain price per share pre- 
 mium, at any time on or before the 18th February, 1844. Be- 
 fore that day the defendant agreed to resell the option to the 
 plaintiff and to guarantee the performance of the agreement by 
 P. On the 16th February, the plaintiff called the shares (i. e. 
 required the delivery of them pursuant to the agreement), but it 
 was at the same time verbally agreed between him and the de- 
 fendant and P. that they should be delivered by P. to the plain- 
 tiff, not on the 18th of February, but on the 2d of March at Paris. 
 It was held that this was not an agreement by the defendant to 
 be answerable for the default of P., but an original promise by 
 the defendant for the delivery of the shares by P., for which a 
 note in writing was not required by the statute of frauds, that 
 statute applying only to promises made to persons to whom 
 another was already or was to become answerable, and P. never 
 having contracted, &c. with the plaintiff.
 
 258 Company as constituted under the Act. 
 
 tract of sale, viz. the mutual assent of the parties 
 and an agreed price. 
 
 350. (2ndly.) Of the form. A contract for the sale 
 of railway shares need not be in writing, inasmuch 
 as railway shares, as has before been said, are nei- 
 ther an interest in land, nor goods, wares, or mer- 
 chandize, (Ar) and therefore contracts regarding them 
 do not fall within the operation of the statute of 
 frauds. 
 
 351. (Srdly.) The class of contracts in question 
 must, it seems, be taken to be governed by the like 
 rules of construction as mercantile contracts in ge- 
 neral, of which they form a class. Evidence, for 
 instance, of a prevailing usage, may be called in to 
 alter, qualify or explain the terms of such a contract. 
 Where, therefore, parties bargain for the sale of 
 shares, to be transferred on or before a given day, 
 although on the face of the contract the option of the 
 time would seem to be with the seller, being the 
 party to perform the first act, evidence would, 
 nevertheless, it should seem, be admissible to show- 
 that, according to the usage prevailing in such con- 
 tracts, the option was with the purchaser, {l) So 
 likewise in an action for not accepting (th) railway 
 shares sold at Liverpool, and to be delivered in a 
 reasonable time, a rule of the Liverpool Stock Ex- 
 change, acted on by all the Liverpool brokers, and 
 seen by the defendant, " that the seller was in all 
 cases entitled to seven days to complete his contract 
 by delivery, the time to be computed from the day 
 
 {k) See ante, 257, n. (k). 
 (I) Hare v. Waring, 3 M. & W. 376. 
 
 (m) Sleioart v. Cauty, 2 Railw. Cas. 616 ; S. C. 8 M. & W. 
 160.
 
 Of Shares. 259 
 
 on which he was made acquainted with the name of 
 his transferee," was held admissible as a guide to 
 the determination of what was reasonable time under 
 all the circumstances of the case. (»«) 
 
 352. Thirdly. We have to speak of the conse- 
 quences of the contract ; and herein, of the rights^ 
 duties and liabilities of the vendor and vendee re- 
 spectively. 
 
 The main duties of the vendor, under a contract 
 such as that in question, are, 1st, to show a good 
 title (n) to the shares forming the subject of the 
 contract ; 2ndly, to be ready and willing to make a 
 legal transfer of such shares at the proper time, and 
 according to the terms of the contract, &c. 
 
 353. The main duties of the purchaser on the 
 other hand are, 1st, to be ready to accept and pay 
 for the shares in question (o) pursuant to the terms 
 of the contract ; 2ndly, to prepare a proper convey- 
 ance, and tender the same for execution, upon hav- 
 ing a good title to the shares made out to him ; (p) 
 and lastly, upon the requisition of the vendor in that 
 behalf, himself to execute the instrument, and to 
 deliver, or attend with the vendor to deliver, such 
 instrument to the company, in order that a memo- 
 
 (m) See ante, 258, n, (to). 
 
 (n) See judgment of the Court delivered by Parke, B., in 
 Humble v. Langston, 2 Railway Cas. 541 ; S. C. 7 M. & W. 
 517 ; Hibblewhite v. M' Marine, 2 Railw. Cas. 66 ; S.C,6 M. 
 & W. 200. 
 
 (n) Stephens v. De Medina, 21 Law Journ. Q. B. 120 ; S. C. 
 4 A. & E. N. S. 422 ; Lawrence v. Knowles, 5 Bing. N. C. 399. 
 Proof of the purchaser being incapable, from the state of his 
 finances, of paying for the shares, is, it seems, suflScient to esta-f 
 blish a want of readiness and willingness ; ibid. 
 
 (p) Stephens v. De Medina, ubi supra.
 
 260 Company as constituted under the Act. 
 
 rial of the transfer may be entered in the company's 
 books, and indorsed on the deed of transfer pur- 
 suant to the ordinary provisions of railway acts, (p) 
 
 3.54. Right of action of vendor. It follows, from 
 the above brief description of the duties of the par- 
 ties, that a vendor, to entitle himself to complain of 
 the nonacceptance of shares by the purchaser, must 
 show two things : 1st, that he made out a good title 
 to the shares, (5) and 2ndly, a readiness and willing- 
 ness to transfer, &c. (r) 
 
 To satisfy the above conditions, it would seem 
 enough for a vendor to prove a tender of share cer- 
 
 (p) Judgment of Parke, B., in Humble v. Langston, ubi 
 supra. 
 
 (q) The transfer book of the company in which the plaintiff's 
 name is entered as transferee is no proof of his proprietorship of 
 the shares ; Hare v. Waring, 3 M. & VV. 362. 
 
 (r) Hannuic v. Goldner, llM.&cW. 849. There, the first 
 count of the declaration, which was in assumpsit, alleged that in 
 consideration that the plaintiff, at the defendant's request, would 
 purchase certain shares in a foreign undertaking, called the 
 Bank of Belgium, at a stated price per share, the defendant pro- 
 mised the plaintiff that he would upon request accept the shares 
 and pay for them. The count then averred that the plaintiff, 
 relying upon the defendant's promise, did purchase the said 
 shares at the said price, nevertheless the defendant did not nor 
 would accept them or pay for them the money for which the 
 plaintiff had so purchased the same, although often requested so 
 to do by the plaintiff, and thereby the plaintiff was obliged to 
 pay to F. P., the person from whom he purchased the shares, 
 the money he was liable to pay him by reason of such purchase. 
 The court would seem to have inclined to the opinion that, whe- 
 ther the count imported that the plaintiff was to purchase the 
 shares from F., and afterwards sell them to the defendant, or to 
 purchase them from F. as agent for the defendant, it was bad in 
 substance, for want of an allegation of readiness and willingness 
 either in the plaintiff or in F. to deliver them to the defendant.
 
 Of Shares. 261 
 
 tificates, coupled with an offer to convey, &c. Such 
 certificates, liowever, ought, on the face of them, to 
 show a title in the vendor to convey the shares in 
 question ; (s) that is to say, according to the usual 
 provisions of a railway act, they must either be in 
 the plaintiff's own name or else have upon them in- 
 dorsements of the transfer to him ; or if they are in 
 the name of a former proprietor, the vendor must, 
 at any rate, be prepared to deduce the title from 
 such former proprietor to himself, {t) 
 
 Although the production of share certificates in 
 the requisite form may be sufficient proof of title, 
 yet it is not, it is conceived, the only proof; but it 
 is competent for a vendor to deduce his title in any 
 other way. 
 
 35^}. In practice it is not unusual for a seller to 
 tender to the purchaser share certificates accom- 
 panied by a transfer with the name of the vendee in 
 blank, and this, it seems, where, at least, the vendor 
 has the property in the shares, is sufficient evidence 
 of a readiness to transfer, though not of a tender of 
 a valid conveyance, (v) 
 
 356. Not only, however, must the vendor offer 
 to transfer the shares, but he must likewise do so 
 within the time prescribed by the contract ; he is 
 
 (s) Hare v. Waring, 3 M. & W. 379. 
 
 (f) Semble, this would not be enough to support an allega- 
 tion in a declaration of a tender of certificates according to the 
 provisions of the act, taking the provisions relative to certificates 
 to be in the common form ; Hare v. Waring, 3 M. & W. 379, 
 380. 
 
 («) Humble v. Langston, 2 Railw. Cas. 541 ; S. C. 7 M. & 
 W. 517.
 
 .262 Company as constituted under the Act. 
 
 entitled, however, for this purpose, to the full time 
 allowed by the contract, and cannot be deprived of 
 that right by an immature request to transfer on 
 the part of the vendee, made prior to the time 
 having expired. (?i) The latter, consequently, is 
 bound to accept an offer of transfer, though sub- 
 sequent to the supposed request, if made within the 
 stipulated time, (m) 
 
 357. If the vendor take no steps to enforce the 
 contract, then the 'purchaser, if he wish to maintain 
 an action for the nontransfer, should call upon the 
 vendor to make out his title, &c., and on his doing 
 so should tender him a proper conveyance for exe- 
 cution, (a) and request him to execute it, and offer 
 to pay him the purchase money (x) upon its being 
 executed. 
 
 358. If both parties lie by and neglect to take 
 any steps under the contract, neither party can com- 
 plain of the other's non-performance of such con- 
 tract. 
 
 359. What damages recoverable by vendor. Where 
 the vendee chooses to repudiate the contract after a 
 due offer of performance on the part of the vendor, 
 &c., the latter has a right to a reasonable time within 
 which to resell the shares, and thereupon is entitled 
 to recover as damages the difference between the 
 
 (jt) Stexcart v. Cauty, 2 Railw. Cas. 616. 
 
 (x) Stephens v. De Medina, 21 Law Journ. Q.B. 120 ; S. C. 
 4 A. & E. N. S. 422. If the vendor fail, &c. to make out a 
 title, semble this dispenses with a tender of conveyance, &cc. If 
 the contract be to deliver shares on demand, it has been held 
 that there must be an actual request to deliver, to support an 
 action for non-delivery ; Green v. Murray, 6 Jur. 728.
 
 Of Shares. 263 
 
 contract price and that at the time of resale. (2) 
 This time, it seems, must be considered to run only 
 from the date of the final repudiation by the pur- 
 chaser, such as the plaintiff' can act upon without 
 hazard or difficulty, (a) 
 
 360. What by vendee. Where the vendor repu- 
 diates the contract, the vendee, having performed 
 his part, has a right, as it should seem, to recover as 
 damages the difference between the contract price 
 and the price at the time when the shares ought to 
 have been transferred, or thereabouts. (6) 
 
 361. Right of vendor to he mdemnifed against 
 future calls. Asa general rule, rqwn a contract for 
 the sale of railway shares, in the absence of an 
 express stipulation to that effect, the law does not 
 imply a promise by the purchaser to indemnify the 
 vendor against subsequent calls ; (c) neither under 
 such circumstances can an undertaking to that effect 
 be inferred in point of fact. A vendor accordingly, 
 who wishes to insure himself against such liability, 
 must take one or other of two courses ; either he 
 must expressly stipulate (c) for such an indemnity 
 with the purchaser, or else he must take the proper 
 measures to get the conveyance coinpleted and the 
 transfer entered. If he takes the latter course, and 
 the vendee refuses to perform his part, in conse- 
 
 (:) Stewart v. Cauty, 2 Railw. Cas. 620 ; S. C. 8 M. & W. 
 160. 
 
 (a) Burned v. Hamilton, 2 Railw. Cas. 624. 
 
 (6) See Humble v. Mitchell, 3 Jur. 1188. 
 
 (c) Humble v. Langston, 2 Railw. Cas. 533, judgment of 
 court delivered by Parke, B. ; S. C. 7 M. & W. 517. In that 
 case there was no time specified for the completion of the con- 
 tract, but semble, this would make no difference.
 
 264 Company as constituted under the Act. 
 
 quence of which the vendor is obliged to pay future 
 calls, the latter may, it seems, in such a case, re- 
 cover the amount by way of special damage for the 
 other party's breach of contract, (c) If the vendor 
 neglects to get the conveyance completed, &c. he 
 then becomes a trustee for the purchaser, and as 
 he receives the profits, must be content to pay the 
 outgoings, (c) 
 
 362. 4th. Of the remedies for enforcing the con- 
 tract. Of remedies at law enough has been said 
 under the preceding head. To proceed, then, to 
 the notice of remedies in equity ; a bill in equity lies 
 to enforce the specific performance of an agreement 
 for the sale of railway shares, {d) And although 
 after the agreement is concluded certain variations 
 are proposed, which, it is agreed by both sides, 
 are to be drawn out in form and embodied in the 
 agreement, which is to be then signed by the vendor 
 (leaving of course to the latter the option of signing 
 or not) ; still if the vendor do not ultimately agree 
 to such variations, the original agreement stands as 
 it was first concluded, and may be enforced accord- 
 ingly, (f/) 
 
 iJ63. We proceed in the third place to treat of 
 the Conveyance ; and here two points present them- 
 selves for consideration: 1st, as to its validity; 
 
 (c) See ante, 263, n. (c). 
 
 (d) Duncuft V. Albrecht, 12 Sim. 189. And if a party pur- 
 chase railway shares, but will not enter the transfer in the com- 
 pany's books, though called on to do so by the vendor, in con- 
 sequence of which the vendor is obliged to pay the calls sub- 
 sequently falling due upon such shares, of which he duly ap- 
 prizes the former, an injunction lies to restrain the purchaser 
 from reselling the shares or cancelling, &c. or parting with the 
 transfer; Atkinson v. Heaton, Reg. Lib. A. 1839, p. 233.
 
 Of Shares. 2Q5 
 
 Sndly, as to its effect. 1st. The instrument of 
 transfer is usually (e) required to be in writing and 
 under the hands and seals of both parties ; when 
 executed this instrument is to be delivered to the 
 company, and a memorial of it is to be entered in 
 the company's transfer book, and the fact of such 
 entry indorsed on the instrument. In requiring the 
 instrument to be under the seals of the parties, the 
 legislature must, it seems, be understood to intend 
 a deed ; and all questions as to the validity of any 
 such instrument must of course, as a general rule, 
 be determined by the common rules applicable to 
 that species of instrument. It will accordingly be 
 wholly inoperative, if, according to what appears at 
 one time to have been the customary course of 
 dealers and speculators in railway shares, the name 
 of the vendee is left in blank for the purpose of the 
 latter's either filling in the name of some subsequent 
 purchaser from himself, or perhaps himself handing 
 over the instrument to such purchaser, (y ) So if the 
 instrument is altered in a material part after it is exe- 
 cuted ; as, for instance, by substituting the name of a 
 fresh person in the place of that of the original trans- 
 feree : and although the alteration be made before 
 the deed is executed by the original transferee, and 
 the seller re-execute the altered deed, still it cannot 
 operate as a conveyance to the new party without a 
 fresh (jg-) stamp, {li) the stamp being exhausted by the 
 
 (e) See Companies Clauses Consolidation Act, (8 Vict. c. 16, 
 s. 14,) post, App. 
 
 (/) Hebblewhite v, M'Morine, 2 Railw. Cas. 66 ; S. C. 6 M. 
 & W. 200. 
 
 (g) Tl^^ London and Brighton Railway Company v. Fair- 
 dough, 2 Railw. Cas. 558 ; 5. C. 2 M. & Gr. 674. 
 
 (h) As to stamp on deed of transfer of shares ia joint stock
 
 266 Company as constituted under the Act. 
 
 operation of the deed at common law, independently 
 of the execution by the purchaser. It is conceived 
 that it would be otherwise, if it could be shown 
 that the alteration was made by way of correcting a 
 mistake in the instrument as it stood originally, and 
 whilst the matter was still in fieri ; though, even in 
 this case, it would still be incumbent on the party, 
 who produced and relied upon the document in its 
 altered state, to show the circumstances under which 
 the alteration was made, and that the supposed state 
 of facts really existed. Vv here the instrument is in 
 itself valid, it is not impaired by reason of a proper 
 memorial thereof not being entered in the transfer 
 book of the company. (J) 
 
 364. 2nd. As to the effect of a transfer ; it con- 
 veys to the purchaser all the interest of the vendor ; 
 thouo-h, till a memorial of the deed is entered, the 
 seller continues liable to all future calls, and entitled 
 to receive the profits accruing in respect of the 
 shares, {k) If in this state of things the seller is 
 called on to pay calls in respect of the shares with 
 which he has parted, he may, it should seem, as a 
 general rule, have recourse to the purchaser to in- 
 demnify him ; the conveyance ordinarily containing 
 an express stipulation that the purchaser is to hold 
 the shares on the like conditions as did the vendor 
 before him, ( /) When this last-mentioned ceremony 
 
 company, and when ad valorem stamp sufficient, see Wolselei) 
 V. Cox, 2 A. &E. N. S. 321. 
 
 (i) The London and Brighton Railway Company v. Faif' 
 dough, 2 Railw. Cas. 558 ; S. C. 2 M. & Gr. 674. 
 
 (k) See 8 Vict. c. 16, s. 15, post, App. 
 
 (i) Humble v. Langston, judgment of court delivered by 
 Parke, B., 2 Railw. Cas. 541 ; S.Cl 31. & W. 517.
 
 OJ Shares. 267 
 
 of entry is complied with, the purchaser then at 
 length becomes a full and perfect shareholder, being 
 clothed with all the rights that appertained to his 
 predecessor. 
 
 oQ5. It should seem that, vmder the ordinary sta- 
 tutory form of conveyance an implied covenant for 
 title arises on the part of the vendor ; the purchaser 
 therefore may perhaps be taken to have his remedy 
 over against the vendor, in case the latter prove 
 subsequently not to have a good title to the shares 
 which he professes to convey to the purchaser. (??«) 
 
 ;366. 2ndly. Of a lease of railway shares. An 
 owner of railway shares may demise the dividends 
 to arise from such shares, reserving a certain rent ; 
 and in such case, if the demise be by deed, the lessee 
 is estopped from denying the lessor's title to the 
 shares, even though the fact of the latter's possession 
 of and title to the shares is averred in the introduc- 
 tory part of the declaration, independently of the 
 deed. (?z) 
 
 367. ^rdly. Of pledges, equitable mortgages, ^'c. 
 It is competent for a shareholder to pledge, deposit, 
 assign, &c. his shares to some third party by way 
 of security, &c. for some given claim, and by so 
 doing to create a lien or charge on such shares in 
 lavour of that party, and this though the forms pre- 
 scribed by the statute are not observed. In order, 
 however, that this effect may be produced, there 
 must be something to show the intention to create 
 
 (m) Hebbkwhite v. M'Morine, 2 Railw. Cas. 67 ; S. C. 6 M. 
 & W. 200. 
 
 (n) Beckett v. Bradley, 23 Law Jour. C. P. 3. The estoppel 
 was held in the above case to appear sufficiently upon the plead- 
 ings, and it was held not necessary to reply it.
 
 268 Company as constituted under the Act. 
 
 a lien, (o) and the other side should take care to 
 give due notice to the company of the transaction. 
 
 368. When a party thus pledges, mortgages, &c. 
 his shares, he becomes, as it should seem, a trustee 
 for the mortgagee, pledgee, &c., receiving the profits, 
 but bound to account to his cestui que trust for 
 whatever surplus of those profits may remain after 
 payment of the outgoings. If in such a case the 
 mortgagee, &c., for the preservation of the property 
 and to prevent a forfeiture, pay any calls upon the 
 shares, he may, it seems, claim to hold them till he 
 is reimbursed, in addition to his original claim, the 
 outlay thus occasioned him.(p) 
 
 369. If the mortgagee, pledgee, &-c., suflTer the 
 mortgagoi', &c. (o) to have the full use and enjoy- 
 
 (o) Cummhig v. Prescott, 2 Y. & Coll. 488. 
 
 (p) SeeExparteDobson,re Boult,'2,0 Law Jour., Bankruptcy, 
 49 ; &. C. 2 M. D. & D. 685. Where there is an absolute trans- 
 fer of shares, subject to redemption, the mortgagor, if he elect to 
 redeem the shares, may possibly be bound personally to indem- 
 nify the mortgagee against all expenses and liabilities incurred in 
 maintaining the mortgage property ; but if, as he may, he choose 
 to waive that right, and submit to be foreclosed, it would seem 
 that the mortgagee cannot have any personal demand against 
 him for any such expenses, &c., relating as they do to property 
 which, upon the supposition just made, he does not think fit to 
 claim. Judgment of Wigram, V. C. in Phene v. Gillon, 9 Jur. 
 1086 ; S. C. 24 Law Journ. Ch. 65. And it is the same where 
 there is a transfer without a clause of redemption, but made 
 upon the understanding that the shares are to be a security 
 to the transferee for some given claim. Ibid. The first branch 
 of the above rule applies still more strongly where the liability 
 does not attach until after the transferor has paid off the debt 
 and in effect elected, and bound himself by such election, 
 to accept a retransfer of the shares, the transferee from that 
 time standing in the position of a mere trustee for the trans-
 
 Of Shares. 269 
 
 meut of the shares without giving notice of his lien 
 to the company, it will be lost as against a subse- 
 quent purchaser for valuable consideration without 
 notice. 
 
 370. II. Of the transfer of shares by the act of 
 
 feror. In July, 1841, the plaintiff lent to the defendant the 
 sum of 880L upon the security of his promissory note for that 
 amount, and of the mortgage of 100 shares in the Western 
 District Banking Company ; it being understood that the plain- 
 tiff was not to be liable to calls, &c. in respect of the shares, 
 and, if he required it, was to have a transfer of tlie shares. On 
 the 10th March, 1842, a regular deed of transfer of the shares 
 from the defendant to the plaintiff, in the form required by the 
 regulations of the company, was executed by the defendant in 
 pursuance of his undertaking, and duly recorded in the transfer 
 register of the company. On the 15th July, 1842, the amount 
 of the loan was increased from 880/. to lOOOL, and upon that 
 occasion the original transaction was brought down to that date, 
 the amount of the charge being increased from 880/. to lOOOi. 
 On the 4th August, 1843, the defendant paid off the debt ; and 
 on the 25th of the same month the plaintiff applied to the direc- 
 tors of the company (who under the deed of settlement of the 
 bank had power, upon certain terms, to refuse the transfer,) to 
 transfer the 100 shares in question to the defendant ; and there- 
 fore, in conformity with the requisitions of the deed of settle- 
 ment, signed a notice requiring them to do so. This he for- 
 warded to the defendant, who signed and transmitted it to the 
 office of the bank. In September, 1843, while the question of 
 the transfer was still pending before the directors, a person al- 
 leging himself to be a creditor of the company recovered three 
 judgments of large amount against the public officer of the com- 
 pany, and soon afterwards, the bank being insolvent, proceeded 
 to make the judgments available against the plaintiff. It was 
 held, upon a bill filed by the plaintiff against the defendant for 
 an indemnity, that the plaintiff was entitled to an indemnity from 
 the defendant against all liabilities properly incurred by him as 
 the holder of the shares from the time at which they were trans- 
 ferred to him. Ibid.
 
 270 Company as constituted under the Act. 
 
 the law. And first, by hanhniptcrj or insolvency, (q) 
 Upon a shareholder becoming bankrupt, &c. his 
 shares vest in his assignees, and they become pro- 
 prietors, ahhoiigh, till they come forward and satisfy 
 the company of their title, they may not be entitled 
 to receive any of the profits. If at the time of the 
 bankruptcy of the legal owner, the shares are pledged, 
 mortgaged, &c., the assignees take them subject to 
 the interest of the pledgee, mortgagee, &c. ; and if 
 the mortgagee, for the preservation of the property 
 and to prevent a forfeiture, have been forced to pay 
 calls on the shares, he may claim to be repaid the 
 amount of such calls out of the proceeds of the sale 
 ordered on occasion of the bankruptcy, (r) 
 
 371. Not only the shares of which the bankrupt 
 is the real owner, but likewise such as are in his 
 order and disposition with the consent of the ti'ue 
 owner, &c., pass to his assignees on the bankruptcy ; 
 as, for instance, where the bankrupt appears in all 
 outward respects as the real owner of shares which 
 he in point of fact holds on a secret trust; (s) or 
 there is a pledge or deposit of shares not accom- 
 panied by a notice (t) to the company, (u) In such 
 
 (9) Semble, where an insolvent has shares in a railway com- 
 pany the court may order all persons whose consent is necessary 
 to transfer such shares into the names of the assignees ; 1 Sc 2 
 Vict. c. 110, s. 54. 
 
 (r) Ex parte Dobson, re BouU, 20 Law Jour,, Bankruptcy, 
 49; 5. C. 2M. D. & D.685. 
 
 (s) See Ex -parte Ord, Dea. 166; Ex parte Watkhis, 2 Mont. 
 & Ayr. 348, reversing decision of Court of Review, 1 Mont. & 
 Ayr. 689. 
 
 (t) Ex parte Vallaiice, 3 Mont. & Ayr. 224 ; S. C. 2 Deac. 
 354 ; Ex parte Bignold, 3 Mont. & Ayr. 477 ; Ex parte Spen- 
 cer, 3 ftlont. & Ayr. 697. 
 
 (w) But quaere whether the absence of notice is sufficient per
 
 Of Shares. 271 
 
 cases consequently the bankruptcy of the ostensible 
 holder, depositor, &'c. operates to defeat the claim 
 of the cestui que trust, pledgee, &c. and vests the 
 entire property in the shares in the assignees dis- 
 charged from any lien or incumbrance. But if no- 
 tice of the lien is given to the company, that is 
 enough to prevent reputed ownership, (a) And even 
 an hnplicd notice may, it seems, be sufficient for this 
 purpose ; as where the transaction is in itself notice, 
 one or more of the parties standing in such relation 
 to the company as to make any express notice a 
 mere idle form. ( y) 
 
 372. 2dly. Of transfer by marriage. The in- 
 terest of a female proprietor upon her marriage is 
 transmitted to her husband ; though, till he comes 
 forward and satisfies the company of his title, he 
 may not be entitled to receive any of the profits (;:). 
 Accordingly, if the husband deposit what were the 
 w'ife's shares as a security for a debt, and then be- 
 come bankrupt, no notice of the transaction having 
 been given to the company before the bankruptcy, 
 the shares must be considered as in the reputed 
 ownership of the husband, and accordingly pass to his 
 
 se conclusively to establish a claim by the assignees on the ground 
 of reputed ownership. See 1 Mont. & Ayr. Bank. Law, p. 846, 
 2nd ed. ; Ex parte Pooley, 2 M. D. & D. 505 ; but see Ex parte 
 Arkwright, 3 M. D. & D. 129. 
 
 (x) Ex parte Masterman, 2 Mont. & Ayr. 209; Ex parte 
 Harrison, 3 Mont. & Ayr. 506 ; Ex parte Waithman, 2 Mont. 
 & Ayr. 364. 
 
 (y) See Ex parte Harriso7i, 3 M. & Ayr. 506 ; see also Ex 
 parte Waithman, 2 M. & Ayr. 364 ; Ex parte Bignold, 3 M. & 
 Ayr. 477. 
 
 (s) See Companies Clauses Consolidation Act (8 Vict. c. 16, 
 ss. 18, 19,) post, App.
 
 272 Company as constituted under the Act. 
 
 assignees ; and this, as it should seem, although the 
 husband, beyond the deposit, have done nothing to 
 reduce the shares into possession, and they still 
 stand in the company's books in the wife's maiden 
 name, (a) 
 
 37S. 3rdly. Of a judge's order for charging 
 shares. (6) Where a judgment debtor, against whom 
 judgment has been entered up, has any shares in a 
 railway company standmg in his name in his own 
 right, or in the name of any person in trust for him, 
 such shares may be charged witli the payment of 
 the amount of the judgment debt and interest, (c) 
 For this purpose the judgment creditor must apply 
 to a judge, who is thereupon empowered to make 
 an order accordingly charging such shares, or such 
 of them, or such part thereof, as he shall think fit. 
 Such order entitles the judgment creditor to all such 
 remedies as he would have been entitled to, had 
 such charge been made in his favour by the judg- 
 ment debtor, (c) No proceedings however can be 
 taken upon it till after six calendar months from 
 the date of the order, (c) The order is to be made 
 in the first instance ex parte and without notice to 
 the debtor, and must be an order to show cause 
 only, (d) It operates to restrain the company from 
 
 (a) See Ex parte Spencer, 3 M. & Ayr. 697. 
 
 {b) As to the respective spheres of authority of the judge and 
 court under this act, and tiie orders that it authorizes a judge to 
 make, and generally as to the operation of the statute and of 
 orders made under it, see Brown v. Bamford, 9 M. & W. 42 ; 
 Rogers v. HoUoway, 21 Law Journ. C. P. 182 ; S. C. 5 M. & 
 Gr. 292 ; Fowler v. Churchill, 21 Law Journ. Exch. 230, 233 ; 
 S. C. 11 M, &W. 57, 323. 
 
 (c) 1 &2 Vict. c. 110, s. 14. 
 
 (d) Ibid. s. 15.
 
 Of Shares. 273 
 
 permitting a transfer of the shares until the order is 
 made absolute or discharged. Or, if after due notice 
 of the order the company permit a transfer, they 
 become themselves liable to the judgment creditor 
 for the amount of the property so charged and 
 transferred, or such part thereof as is sufficient to 
 satisfy the judgment, (e) No disposition of the 
 judgment debtor in the mean time is valid as against 
 the judgment creditor; and unless, within the time 
 specified in the order, the judgment debtor shows 
 good cause to the contrary, the order, on proof of 
 notice to the judgment debtor, is to be made abso- 
 lute. (/") The judge has power upon application 
 of the judgment debtor, or any person interested, to 
 discharge and vary the order and to give costs, (f) 
 If before the shares are realized, and the proceeds 
 applied in payment of the judgment debt, the judg- 
 ment creditor takes the person of his debtor in 
 execution, he forfeits all right to the benefit of the 
 charge. (5-) 
 
 .'J7i. The above provisions are now defined, &c. 
 by the 3 & 4 Vict. c. 82, s. 1, and made expressly 
 to embrace the interest of the judgment debtor, 
 whether in possession, remainder or reversion, and 
 whether vested or contingent, as well in the shares 
 themselves as in the dividends thereof. 
 
 375. Purchase money deposited by the vendee 
 (a railway company) in the hands of a third person 
 for the use of the vendor, against whom a judgment 
 has been obtained, &c., cannot be attached under 
 
 (» 1 & 2 Vict. c. 110, s. 15. 
 (J) Ibid. 
 (S) Ibid. s. 16. 
 n5
 
 274 Company as constituted under the Act. 
 
 the above provisions, as it is no part of the funds of 
 the company, {h) 
 
 376. III. Of Transfers by the Act of God. Ac- 
 cording to the usual provisions of a railway act, a 
 share, on the death of a proprietor, vests in his 
 executors, and they become proprietors, although 
 they may not be entitled (i) to receive any of the 
 profits until they come forward and satisfy the com- 
 pany of their title by production of the will, &c. (A) 
 
 377. The right of a shareholder to share in the 
 profits of the undertaking, being personal property, 
 may, it should seem, for the purposes of probate, be 
 considered as locally situate in the diocese where is 
 the head office of the company, and accordingly a 
 probate granted by the court of the bishop of that 
 diocese he deemed sufficient, (/) or if the railway ex- 
 tend into two provinces, then a probate in the one 
 province where the head office is situate would be 
 enough, (in) 
 
 378. A SECOND INCIDENT (?j) of the property in 
 railway shares is its liability to forfeiture. By 
 a railway act a power is usually lodged in the di- 
 rectors of a railway company to declare shares for- 
 feited in case of nonpayment of calls. Such for- 
 
 (Ji) Robinson v. Peace, 7 Dowl. 93. 
 
 (i) See Companies Clauses Consolidation Act, 8 Vict. c. 16, 
 ss, 18, 19, post, App. 
 
 (fc) Fyler v. Fyler, 2 Railw. Cas. 813; S. C. ibid. 875. 
 
 (/) See Ex parte Home, decided in the analogous case of 
 canal shares, 7 B. & C. 632. 
 
 (m) See Smith v. Stafford, also decided on a canal act, 2 
 Wils. Ch. Ca. 166. 
 
 (n) As to provisions of Companies Clatises Consolidation Act, 
 8 Vict. c. 16, on subject of forfeiture, see act, ss. 29 — 35, post, 
 App.
 
 Of Shu7es. 275 
 
 feiture however in general is made not to attach till 
 it has been reported to and sanctioned by a general 
 meeting of proprietors. In the exercise of this 
 power of forfeiture the directors are bound to act 
 bona fide and conformably to the requisitions of the 
 act under which they derive their power ; otherwise 
 the parties whose interests the proposed application 
 of such power is calculated to affect, may apply to a 
 court of equity to restrain them from proceeding, (o) 
 Suppose, for instance, that, on the occasion of calls 
 .being made on the shareholders of a company 
 generally, a certain class of shares are exempted 
 from payment of calls, a court of equity would, it 
 seems, restrain the directors from proceeding to 
 declare a party's shares forfeited for nonpayment of 
 any such call, until they should have first taken 
 steps to put all the shareholders on an equal footing 
 in such respect, (o) 
 
 Sub-Sect. 3.— Of Calls. 
 I. Of the Power of making Calls generally. 
 II. Of the corresponding Duty. 
 
 III. Conditions precedent. 
 
 IV. Liability to Calls. 
 
 1. Generally. 
 
 2. Determination or Devolution of Liability. 
 
 (1) By transfer. 
 
 (2) By forfeiture. 
 V. Requisites of Calls. 
 
 379. I. Of the po7i'er(p) of making calls. In 
 order to facilitate the formation of railway com- 
 
 (o) See Preslon v. The Grand Collier Dock Company, 2 Railw. 
 Gas. 335; S.C. 11 Sim. 327. 
 
 (p) See Companies Clauses Consolidation Act, 8 Vict. c. 16, 
 s. 22, post, A pp.
 
 276 Company as constituted under the Act. 
 
 panies and induce parties to become subscribers to 
 such undertakings, tlie amount of the subscriptions 
 is made payable not at once and in the aggregate, 
 but only in small sums or instalments termed calls. 
 A power to demand and enforce payment of these 
 calls is always given by the act incorporating the 
 •company. In according this power however, the 
 legislature is at the same time careful to impose 
 certain conditions on its exercise. Such conditions 
 are either in the nature of conditions precedent, 
 and accordingly require to be first satisfied before 
 the company can be permitted to exercise the power 
 in question at all ; or else they prescribe certain 
 regulations for the exercise of that power, touching, 
 for instance, the parties by and upon whom, the 
 time at which, or the manner in which, calls are to 
 be made, and the like. An authority given under 
 such restrictions and limitations must, it is obvious, 
 be strictly pursued. The company in the first place 
 must be in a position to make a call ; secondly, the 
 person on whom it is made must be a person whose 
 liability to pay calls is contemplated by the act, and 
 lastly, there must be a compliance with all the forms 
 prescribed by the act touching time, place, the 
 manner of making calls, S:c. 
 
 oSO. II. Of the dull) of making calls, incidental 
 to the above power. A railway company is not like 
 an ordinary corporation, possessed or supposed to 
 be actually possessed of corporate property, and 
 with which individuals contract on the faith of such 
 present possession, but a corporation with a power 
 of creating a future corporate property from time 
 to time out of the private assets of its individual 
 members, and with which contracts are made on the
 
 Of Calls. 277 
 
 faith that an honest exercise will be made of such 
 power when necessary. It follows that it is the 
 duty of the directors, when the exigencies of the 
 society and the state of its affairs are such as fairly 
 to require a call to be made, to put in force the 
 power entrusted to them for that purpose. Sup- 
 posing therefore it were clearly established that the 
 company were evading payment of their just debts, 
 &c. on the ground that they had no corporate assets 
 actually in possession, a mandamus perhaps might 
 lie to compel the company to make the necessary 
 calls, or even to enforce payment of calls already 
 made, so as to put themselves in funds to answer the 
 demands of their creditors. This supposes that the 
 company is in such a state as to be capable of obey- 
 ing a mandamus so couched, as for instance that it 
 has the proper officers, &c. {q) 
 
 381. III. Of conditions precedent. To sustain the 
 validity of a call, the company must be competent 
 to make it. Where a railway act requires certain 
 things to be done before a company are to be allow- 
 ed to avail themselves of their statutory powers, 
 this obviously constitutes a condition precedent, 
 which the company must first show to be satisfied, 
 in order to entitle themselves to make or enforce 
 payment of calls upon the shareholders, (r) 
 
 (q) See Reg. v. Victoria Park Company, 1 A.& E. N. S. 288, 
 judgment of Denman, C. J. In Reg. v. Tliames Haven Dock 
 and Railway Company, a similar mandamus issued to a com- 
 pany, who returned that they had no assets, but that they had 
 made the necessary calls ; Crown Office, 1844. 
 
 (?•) The Company of Proprietors of the Norwicli and Lowestoft 
 ?iovigatioH v. Theobald, 1 M. &, M. 151 ; see also The Stratford 
 and Morelon Railway Company v. Stratton, 2 B. & Ad. 525; 
 judgment of Hullock, B., in Cromford Railway Company v. 
 Lacey, 3 Y. 6c J. 89.
 
 278 Comimny as constituted under the Act. 
 
 The statute establishing a company provided that 
 the whole of the capital was to be subscribed before 
 any of the powers given thereby were put in force. 
 It was held that the completion of the subscription 
 list was necessary to enable the company to make 
 a call, and that they could not, (5) consequently, 
 recover the amount of a call made prior thereto, 
 notwithstanding it was provided by a subsequent 
 section of the act, that in actions for calls it should 
 only be necessary for the company to prove that 
 the defendant was a shareholder at the time of 
 making the call, that the call was in fact made, and 
 such notice thereof given as directed by the act. 
 
 382. But although, where a clear condition prece- 
 dent is imposed on the coinpany by the legislature, 
 proof must be given of its performance, before they 
 can be suffered to make or enforce calls upon the 
 shareholders, yet the court will not, it seems, permit 
 that in every case, where an action is brought for 
 calls, the defendant should turn round upon the com- 
 pany and object some defect it may be in their con- 
 stitution, or in the mode of their proceedings under 
 their act, or the informality of the appointment of the 
 directors, &c., as a ground for defeating the claim of 
 the company ; at least when (as is generally the case) 
 the statute itself limits the answer to be given to such 
 claim, (i) An act provided, that in actions for calls 
 it should only be necessary for the company ro prove 
 the proprietorship of the defendant and the giving 
 of such notice of the making of the calls in ques- 
 
 (s) The Company of Proprietors of the Xoruich and Lowestojt 
 Navigation v. Theobald, 1 M. & JM. 151. 
 
 (t) As to provision of Companies Clauses Consolidation Act 
 (8 Vict. c. 16,) on this head, see act, s. 27, post, App.
 
 Of Calls. 279 
 
 tion as directed by the act ; it was held that a party 
 sued for calls could not, under the act, set up, by 
 way of defence, that the calls were made for pur- 
 poses other than those warranted by the act, or that 
 there had been a deviation from the original line, 
 and that the money was called for in respect of such 
 deviation, or that fewer shares had been allotted 
 than the act required, {^l) But, supposing the com- 
 pany itself to be a bubble, or its statutory powers to 
 have been obtained by gross fraud and misrepre- 
 sentation practised on the legislature, or supposing 
 the party sued for calls to have been induced to 
 become a shareholder by the misrepresentations and 
 fraud of the directors, possibly that might afford a 
 ground for relief in equity against the claims of the 
 company for calls, (.r) 
 
 383. IV. Of the liabH/tTj to calls ; (tj) and 1st, of 
 such liability generally. In order to render a party 
 liable for calls, he must be shown to be one of 
 those whose liability is contemplated by the act of. 
 parliament. Those persons are, in general, divi- 
 sible into three classes: Ist, subscribers; 2ndly, 
 persons who have acquired shares by the statutory 
 mode of transfer ; and 3rdly, parties who, without 
 being legally constituted members, have yei by their 
 conduct dispensed with the machinery which the 
 
 (w) London and Brighton Railway Company v. Wilson, Same 
 V. Fair dough, 6 B. N. C. 135. 
 
 (a) See The Cromford and High Peak Railway Campany v. 
 Lacey, 3 Y. & J. 80 ; the judgment of the Vice-Chancellor in 
 Mangles v. The Grand Collier Dock Company, 2 Railw. Cas. 
 359 ; S. C. 10 Sim. 519 ; Thorp v. Hughes, 3 Myl. & Cr. 742. 
 
 (y) As to who liable to calls under Companies Clauses Con- 
 solidation Act, (8 Vict. c. 16,) see act, ss. 21, 22, post, App.
 
 280 Company as constituted under the Act. 
 
 legislature renders necessary to constitute a mem- 
 ber, and who are consequently estopped from saying 
 they are not members. 
 
 384'. Subscribers, who meant by. (First) then, of 
 the first class. To fix a party with liability on this 
 score, it must, of course, be made out that he has 
 subscribed within the meaning of the particular act. 
 Now the term " subscriber" may be understood in 
 two senses, either of persons who have actually 
 contributed money, or of those vvho have simply 
 stipulated and bound themselves to contribute, (z) 
 The question in which sense it is to be understood 
 in any given case must, of course, depend upon the 
 provisions of the particular statute. Supposing that 
 the term is obviously intended to be used in the 
 latter of the above senses, it remains to be con- 
 sidered in what manner a party must bind himself 
 so as to constitute himself a subscriber within the 
 provisions of tlie particular act. When the act con- 
 templates as the test of membership the subscription 
 of a contract binding on the subscribers and their 
 heirs, it would clearly be insufficient proof of a 
 party being a member, to show simply tliat he had 
 signed a contract, which, though professing to bind 
 his heirs, was not under his seal, (a) But, because 
 the original subscribers appear on the face of the 
 act to have contracted by deed, (as, for instance, 
 by a recital in the act to that eflfect,) this is no 
 reason for holding that additional subscribers, who 
 are evidently contemplated by the act, must bind 
 
 (2) Thames Tunnel. Company v. Sheldon, 6 B. & C. 341. 
 (a) See Cromford and High Peak Railway Company v. Lacey, 
 3 Y. & J. 80.
 
 Of Calls. 281 
 
 themselves in the same manner as the original sub- 
 scribers, (h) 
 
 385. (2ndly.) To charge a party as legal trans- 
 feree of shares, it must, of course, appear that the 
 mode of transfer pointed out by the statute has 
 been strictly pursued ; where, therefore, the transfer 
 is required to be by writing under the seal, &c. of 
 the parties and duly stamped, no action for calls can 
 be maintained against a party who claims under an 
 instrument void by reason of its being executed 
 with a blank for the name of the purchaser, (c) or 
 one which is altered in a material part after exe- 
 cution by the vendor, {d) and then re-executed by 
 him without being restamped. Supposing, how- 
 ever, the instrument itself to be free from objection, 
 proof of the entry of a memorial thereof is not 
 necessary to enable the company to recover ; the 
 provision on that head usually found in a railway 
 act being intended only for the security of the com- 
 pany, (rf) 
 
 .386. (Srdly.) Although a party be neither an ori- 
 ginal subscriber, nor claim through one by virtue of 
 a conveyance in the form prescribed by law, still he 
 may be subject to pay calls when hy his conduct he 
 can fairly be taken to have dispensed with the for- 
 malities required by the legislature to constitute a 
 
 (6) See The Great North of England Railway Cumjjany v. 
 Biddulph, 2 Railw. Cas. 410 ; S. C. 7 M.&c W. 243. 
 
 (c) Hebblewhite v. M'Moritie, 2 Railw. Cas. 51; .S. C. 6 M. 
 & W. 200 ; Sheffield, Ashton-under-Lyne and Manchester Rail- 
 way Company v. Woodcock, 2 Railw. Cas. 522 ; S. C. 7 M. & W. 
 574. 
 
 (d) London and Brighton Railway Company v. Fairclough, 2 
 Railw. Cas. 544 : S. C. 2 M. & Gr. 674.
 
 282 Company as constituted under the Act. 
 
 member. For instance, where a party can be shown 
 to have held himself out to the world and acted as 
 a proprietor, he cannot, it seems, in such case, be 
 allowed to turn round on the company and say that 
 he is not a member, (e) So likewise, where a party, 
 by claiming to be registered, or by representations 
 to the like effect addressed to the company, &-c. 
 induces them to treat him as a member, he cannot 
 afterwards deny that he is so. (/ ) It makes no 
 difference in such a case how he comes to his share, 
 wliether by a bare pui-chase and receipt of scrip 
 certificates that are handed over to him by the 
 vendor, or by a transfer, in itself invalid, from an 
 unregistered proprietor prior to the formation of the 
 register of the proprietors, {g) 
 
 387. Secondly. Of the determination or devolution 
 
 (e) See Cromford and High Peak Bailivay Company \.Lacey, 
 3 Y. & J. 80. 
 
 (_/") London Grand Junction Railway Company \ . Freeman , 
 2 Railw. Cas. 468 ; 5. C. 2 ftl. & Gr. 606 ; Sheffield, Ashton- 
 under-Lyne and Ma7ichester Railway Company v. Woodcock, 2 
 Railw. Cas. 522 ; S. C. 7 M. & W.574 ; Cheltenham and Great 
 Western Union Railway Company v. Daniel, 2 Railw. Cas. 728 ; 
 S. C. 6 Jur. 577 ; London Grand Junction Railway Company v. 
 Graham, Same v. Gunston, 2 Railw. Cas. 870; S. C. 1 Ad. & E. 
 N. S. 271 ; Birmingham, Bristol and Thames Junction Railway 
 Company v. Locke, 2 Railw. Cas. 867 ; S. C. 1 Ad. & E. INT. S. 
 256. 
 
 (g) London Grand Junction Railway Company v. Freeman, 
 ubi supra ; Sheffield, Ashton-under-Lyne and Manchester Rail- 
 way Company v. Woodcock, ubi supra. The doctrine laid down 
 in the text, must, it is conceived, be understood with this limi- 
 tation, that there is nothing in the company's act to confine the 
 liability for calls to original subscribers, or their legal trans- 
 ferees. See judgment of Lord Denman, C. J., in London Grand 
 Junction Railway Company v. Freeman, ubi supra.
 
 Of Calls. 283 
 
 of the above liaUlity. This may be brought about 
 in two ways : 1st, by transfer ; 2ndly, hy forfeiture. 
 Again, a transfer may take place in three ways : by 
 the act of the owner, by the act of the laii\ and by 
 the act of God. 
 
 388. (First) then, of a transfer by the act of the 
 owner. Subject to one restriction, viz. that he is not 
 to assign while in arrear for calls to the company, a 
 shareholder possesses a discretionary power of as- 
 signing his shares, and by the exercise of that power 
 may at any time rid himself of all future liability for 
 calls, (Ji) the general scope and policy of a railway 
 act being to treat a shareholder (at least one who 
 takes by transfer, and is not an original subscriber) 
 as identified with his share, and as having nothing 
 to do with the company either as regards rights or 
 liabilities before he becomes or after he ceases to be 
 a shareholder. A shareholder accordingly continues 
 liable to the payment of calls only so long as he 
 individually continues possessed of his shares, and 
 upon assignment thereof, coupled with an entry of 
 a memorial of the transfer, the assignee holds the 
 shares upon the same conditions as his assignor, and 
 is to all intents and purposes substituted (J) in his 
 place ; shares may be thus assigned even to insol- 
 vent parties, (i) 
 
 (Ji) H udder sfield Canal Company v. Buckleij, 7 T. R. 42. But 
 it may be questioned, whether (looking- at the ordinary provisions 
 of railway acts) an original subscriber can thus discharge him- 
 self from his liability on the parliamentary contract ; see Hornby 
 V. Houlditch, cited in Ladford v. Barber, 1 T. R. 92,93 ; Fitz- 
 patrick on Railway Rights, &c. p. 13. 
 
 (j) Huddersfield Canal Company v. Buckley,! T. R, 42.
 
 284 Company as constituted under the Act. 
 
 389. A question has been made, whether the 
 above rule applies to the case of an assignment be- 
 tween the time of a call being made by the directors 
 and that appointed for its payment. The ordinary 
 provisions of railway acts on this subject go far to 
 show that they do not contemplate the continuing 
 liability of a shareholder (not being an original sub- 
 scriber), who holds a share at the time a call is 
 made, but transfers it, and enters a memorial of the 
 transfer before the call is payable. The remedies 
 that the statutes in question provide in case of non- 
 payment of calls, by action, by forfeiture and by 
 withholding dividends, are remedies against those 
 who are the holders of shares at the time the call is 
 payable. The provision likewise, that the seller 
 shall continue liable only till a memorial of transfer 
 is entered, and that prohibiting a transfer after a call 
 is payable, seem to show that if any further liability 
 on the part of a shareholder who had transferred, or 
 any further restraint on alienation had been in- 
 tended, it would have been expressly provided for, 
 and consequently lead to the like conclusion, viz. 
 that the remedy of the company under the circum- 
 stances cannot at any rate be sought against the 
 transferror, {k) 
 
 390. It remains to be considered, whether the 
 company has any remedy against the transferee. To 
 such an hypothesis there is this strong objection, 
 viz. that the statutes in the remedies by action they 
 provide against defaulters would seem to point at 
 one and the same party throughout, viz. the pro- 
 
 (k) Judgment of Tindal, C. J., in The Aylesbury Railway 
 Company v. Mount, 2 Raihv. Cas. 685 ; S. C. 4 M. & Gr. 651.
 
 Of Calls. 285 
 
 prietor for the time being at the time of the making 
 of the call, and on whom consequently the call is 
 made. {V) Consequently, without doing some vio- 
 lence to what, on a fair intendment of the sense of 
 the provisions in question, would seem to be the in- 
 tention of the legislature, a party who acquires a 
 share by transfer in the supposed interval can hardly 
 be brought within the operation of those remedies. (0 
 
 391. It would seem to follow from what has been 
 just said, that the case in question is not one con- 
 templated or provided for by provisions resembling 
 those of the act under consideration, and that con- 
 sequently in any such case, where a shareholder 
 chooses to transfer his share just as a call is fallino- 
 due, he may by so doing defeat the claim of the 
 company pro tanto. (in) 
 
 392. In order to have the effect of dischargintj a 
 shareholder from his liability to calls, there must as 
 a general rule be a regular transfer (n) in the mode 
 
 (<) The Aylesbury Railway Company v. Thompson, 2 Railw. 
 Cas. 678 ; S. C. 19 Law Journ. Q. B. 124. 
 
 (m) Though the prohibitioa be against any transfer after a 
 call is made, and not simply after it is payable, still a difficulty 
 may arise as to what is the time of making a call, which prevents 
 the free transfer of shares, viz. whether it is to date from the re- 
 solution of the directors, or from the notice in the newspapers of 
 the call, or even from the period when the calls become due. 
 See judgment of Parke, B. in Sheffield, Ashton-under-Lyne and 
 Manchester Railway Company v. Woodcock, 2 Railw. Cas. 530 ; 
 S. C. 7 M. & W. 574. 
 
 (n) It may be proper here briefly to consider, whether any 
 and what exceptions there are to this rule, and for this purpose 
 to consider the effect on the liability to calls, 1st, of a transfer 
 of scrip prior to the passing of the act, and 2dly, of a transfer
 
 286 Company as constituted under the Act. 
 prescribed by the act. Any other course of pro- 
 subsequent to the act, but either not in the regular form pre- 
 scribed by the act, or else not followed up by the requisite 
 solemnities. 
 
 I. Then to consider the effect of a transfer of scrip prior 
 to the act, there are two parties whose position is to be here 
 considered; 1st, the original subscriber (see Terrell on Sub- 
 scribers' Liabilities, p. 20 et seq.) ; 2nd, the transferee. 
 
 1st. In considering the first point there are three contin- 
 gencies, that it may be proper here to notice : (1st,) the case, 
 where the scripholder is willing to come in and register, and 
 is accordingly registered by the company after the passing of 
 the act, A'ow we have seen that, under the usual provisions of 
 railway acts (see ante, pp. 281, 282,) where a scripholder 
 by claiming to be registered, or by any representation to the 
 like effect addressed to the company, &c. induces them to treat 
 him as a member, he cannot afterwards deny that he is so, and 
 by consequence becomes liable to the company for calls just as 
 any other shareholder. It would seem that, under such circum- 
 stances, the company must be considered to have abandoned all 
 further claim upon the original subscriber, and to have elected 
 to look exclusively to the transferee. The former consequently 
 is therefore discharged from all liability to the company. But 
 see n. (/i), ante, p. 283. 
 
 The (2nd) contingency is where though the company are will- 
 ing to register the scripholder, the latter refuses to come in and be 
 registered ; in this case the original subscriber continues liable to 
 the payment of calls, and he has no remedy (in the absence at 
 least of a special agreement to that effect) to compel the trans- 
 feree of the scrip to come in and register or indemnify him against 
 his liability to such calls, as the law implies no undertaking under 
 such circumstances to . that effect on the part of the transferee ; 
 Jackson v. Cocker, 4 Beav. 59 ; Humble v. Langston, 7 M. & 
 VV. 517. Neither can the original subscriber, it seems, by con- 
 sequence claim to treat such refusal on the part of his transferee 
 as an abandonment or forfeiture of the latter's interest in the con- 
 cern, so as to entitle him to insist as against the company on 
 being himselfregistered, and thereby enable himself to transfer his
 
 Of Calls. 287 
 
 ceeding, however much intended by the parties to 
 
 shares anew, and to relieve himself from the threatened respon- 
 sibility. In short an original subscriber, who chooses to part with 
 his interest in the concern without exacting from the purchaser 
 an express agreement to come in and register, must be considered as 
 it were to guarantee to the latter the future success of the under- 
 taking, and accordingly must be content to bear all the responsi- 
 bilities, in the event of the latter being unwilling to undertake 
 them by reason of the apprehended failure of such undertaking ; 
 though semble, in respect of any calls which an original sub- 
 scriber is compelled to pay in consequence, he may be con- 
 sidered to have an equity to be reimbursed the amount out of 
 such profits as the scheme may eventually produce. 
 
 (3rdly,) Suppose the scripholder to be willing to come in and 
 register but the company to refuse to register him ; here, if by the 
 terms of the subscribers' agreement, scrip certificate, &c. the 
 power was reserved to the managers to recognize transfers of 
 scrip or not at their discretion, the transferee cannot, it is con- 
 ceived, insist on the company's registering him. The only course 
 therefore for the parties to adopt would be for the subscriber 
 himself to come in and register, and then to transfer the shares 
 to the purchaser according to the forms contemplated by the 
 act ; or else the latter, it seems, might rescind the contract 
 for the purchase of the scrip, and recover back the money paid 
 under it (see ante p. 43, n. (c), and cases there cited). Where, 
 on the other hand, there is no such power reserved to the 
 managers, and consequently the purchaser acquired an absolute 
 interest by the bare act of transfer ; there, it is conceived, the 
 transferee might maintain an action against the company for 
 refusing to register him, supposing, that is to say, he were pre- 
 pared to establish a bona fide title to the scrip purchased (see 
 10 !M. & W. 309, see also ante, p. 46, n. {y), as to necessary 
 limitation of this doctrine). Until by one or other of these 
 means the purchaser has succeeded in procuring himself to be 
 entered on the register of shareholders, the original subscriber 
 would of course remain liable to calls. 
 
 2ndly. The position of a mere purchaser of scrip is easily 
 deducible fronr the tenor of our preceding remarks. Except
 
 288 Comjmny as constituted under the Act. 
 
 rid the shareholder of the obh'gations imposed on 
 him as such, will be ineffectual for the purpose, (o) 
 As for instance, where certain persons subscribed 
 for additional shares in a company, in order to make 
 up the amount of subscribed capital required by a 
 standing order of the House of Lords, and thereby 
 obtain an act of incorporation, and thereupon signed 
 a declaration to the effect that they held the shares 
 in trust for the company, and subsequently at a 
 meeting of the directory a resolution was passed to 
 that effect, and again, at a special general meeting of 
 the company, a further resolution was passed that 
 the trust should be annulled, and the additional 
 shares be transferred to tlie secretary, to be held by 
 
 he registers, he incurs no liability whatever to the company, 
 and this, in the absence of an express agreement to that effect, 
 he cannot as we have seen, be compelled to do. If he comes 
 in and is accepted by the company as a shareholder, he can 
 then of course only get rid of the liability by a regular transfer 
 under the act. 
 
 II. Of the effect of a transfer subsequent to the passing of 
 the act of parliament, but not made according to the forms pre- 
 scribed by the act, or not followed by the requisite ceremonies. 
 In either case the vendor, it seeras, continues liable for calls to 
 the company as long as this state of things continues ; and in the 
 former case he has no remedy against the purchaser to compel 
 an indemnity in the absence at least of an express agreement to 
 that effect, as the law under such circumstances does not imply 
 a promise by the purchaser to indemnify the seller against future 
 calls ; neither can an undertaking to that effect be inferred in 
 point of fact ; Humble v. Langston, 7 M. & W. 517 ; S. C. 2 
 Railw. Cas. 533. 
 
 (o) Preston v. The Grand Collier Dock Company, 2 Railw. 
 Cas. 350 ; S. C. 11 Sim. 327 ; Mangles v. The same, 2 Railw. 
 Cas. 359; S. C. 10 Sim. 519.
 
 Of Calls. 289 
 
 him at the disposal of the company, which resohi- 
 tion was confirmed at a subsequent general meeting, 
 it was held that, notwithstanding the measures thus 
 taken to relieve them, the holders of the additional 
 shares were liable to the payment of calls, (p) 
 
 393. (2ndly.) Of the effect of a devolution of the 
 shares by the act of the larv. Where a shareholder 
 becomes a bankrupt, or takes the benefit of the In- 
 solvent Act, his shares pas-s to his assignees, subject, 
 as it should seem, to the option on their part of 
 rejecting and abandoning such shares, if they think 
 them likely to prove a damnosa hereditas. If the 
 assignees choose to take to the shares, they become 
 the owners, and as such liable to the burdens that 
 run with them, till they again part with them ; 
 though they may claim to be reimbursed the amount 
 of calls they are forced to pay in consequence out 
 of the estate they represent. If they exercise their 
 supposed option by a rejection of such shares, the 
 shares, it is conceived, must be taken to remain 
 undivested in the bankrupt, whose liability as to 
 future calls continues the same as it was before the 
 bankruptcy, &c. For arrears of calls the company 
 may of course prove against the estate of the share- 
 holder. 
 
 394. (Srdly.) Of the effect of the devolution of the 
 shares by the act of God. According to the ordinary 
 provisions of a railway act, the shares are vested 
 in the several parties taking the same, their execu- 
 tors, administrators and assigns. On the death 
 accordingly of a proprietor, his shares vest in his 
 
 (p) Preston v. The Grand Collier Dock Company, ubi supra. 
 
 o
 
 290 Company as constituted under the Act. 
 
 executors, &c. ; and although they are not in the 
 company's books as executors, they become pro- 
 prietors, and as such liable to the provisions of the 
 act, and among these to those rendering obligatory the 
 payment of calls. The provision for executors, &c. 
 coming in and claiming the benefit of the shares, 
 cannot, it seems, be taken to alter this state of 
 things, or to operate in any way to release the de- 
 ceased's estate, being intended for the benefit and 
 convenience of the company, and to enable them to 
 ascertain who are the persons entitled, but not to 
 affect the property in shares or the liabilities. An 
 action or suit accordingly is maintainable against 
 executors as well for calls made in the testator's 
 lifetime as for those made after his decease, {q) 
 
 395. 2ndly. Of forfeiture, (r) A second mode in 
 which a party may be relieved from his liability to 
 pay calls, is by the directors declaring his shares for- 
 feited under the provisions of their statute, &c., such 
 act on the part of the directors being subsequently 
 adopted and confirmed at a public meeting of the 
 company within the time appointed for that pur- 
 pose, (i) This relief cannot, it should seem, be 
 securely attained by any other course of proceedings 
 
 (g) Fyler v. Fyler, 2 Railw. Cas. 813, 6'. C. ibid. 873. 
 
 (?■) As to provisions of Companies Clauses Consolidation Act 
 (8 Vict. c. 16), on the subject of forfeiture, see act, s. 29 — 35, 
 post, App. 
 
 (s) The Edinburgh, Leith and Newhaven Railway Company v. 
 Hebblewhite, 2 Railw. Cas. 239 ; S. C. 6 M. & W. 707 ; The 
 Birmingham, Bristol and Thames Junction Railway Company v. 
 Locke, 2 Railw. Cas. 867 ; S.C.I A. & E. N. S. 256 ; Lotidon 
 and Brighton Railway Company v. Fairclough, 2 M.& Gr. 674,
 
 Of Calls. 291 
 
 in which the provisions of the act as to the forfeiture 
 of shares are not followed, though the intention of 
 the parties to the transaction may be to give the 
 party the benefit which the act annexes to a for- 
 feiture, {t) A party having taken shares for the 
 accommodation of a company, it was subsequently 
 resolved by the directory that he should be at liberty 
 to transfer such shares to the company. A deed 
 was accordingly prepared for the purpose, which 
 the party executed, thereby purporting to forfeit and 
 relinquish his shares to the company, who agreed to 
 accept the same . The Lord Chancellor held that, 
 though it was clear that what was intended was to 
 relieve the party from any future liability to calls, 
 still that great difficulty existed as to how that 
 expectation could be realized as against the com- 
 pany, (m) 
 
 39(5. V. Requisites of calls, (r) Lastly, calls must 
 be made in compliance with the requisites prescribed 
 by the statute, or the company can have no right to 
 recover them. These requisites relate to the persons 
 by wliom or those upon whom, or the time when calls 
 are to be made, or to their amount, or to the mode of 
 making them and the attendant formalities, 
 
 i)97. First, then, the calls must appear to be 
 made by the parties to vjhom the autJtoritij for that 
 purpose is given by the act. But where by an act 
 the power to make calls was given to the directors 
 
 (0 Playjuir v. The Birmingham, Bristol and Thames Junction 
 Railway Company, 1 Railw. Cas. 640. 
 
 (u) Ibid. 
 
 (x) See Companies Clauses Consolidation Act(8 Vict. c. 16), 
 s. 22, post, App. 
 
 2
 
 292 Company as constituted under the Act. 
 
 and the calls on the face of them purported to be 
 made by the court of directors, it being objected 
 that in making the calls the directors acted in a dif- 
 ferent capacity from that in which they were em- 
 powered to make calls, (y) it was nevertheless held 
 to be good, the act apparently using the different 
 terms in question indiscriminately. Assuming calls 
 to be made by persons who have been allowed to 
 act in the character which authorizes them to make 
 calls, it would not, it is conceived, looking at the 
 visual provisions of railway acts on this subject, be 
 competent for a shareholder to resist payment of 
 such calls on the gi-ound of those persons being de 
 jure disqualified. (~) 
 
 398. Persons ujoon whom calls to he made. Again, 
 the calls must be made on the persons contemplated 
 by the act of parliament. Looking at the usual pro- 
 visions of a railway act, it is impossible not to see 
 that it is the intention of the legislature that those 
 who become shareholders should all of them pay 
 rateably. It is the duty accordingly of the directors 
 to make calls on all equally, and this rule extends 
 not merely to the ordinary shareholders, but to 
 parties taking shares in trust for the company. A 
 shareholder, however, cannot evade payment of calls 
 
 ( v) The Southampton Dock Company v. Richards, 1 M, & Gr. 
 448 ; S. C. 2 Railw. Cas. 222. 
 
 (s) See judgment of Tindal, C. J. in Thames Haven Railway 
 Company v. Hall, 5 M. & Gr. 274; but see Sheffield, Ashton- 
 under-Lvne and Manchester Railway Company v. Woodcock, 2 
 Railw. Cas. 527 ; S. C. 7 M. &c W. 574 ; and the judgment of 
 the Vice-Chancellor in Mangles v. The Grand Collier Dock 
 Conpany, 2 Railw. Cas. 359 ; S. C. 10 Sim. 519.
 
 Of Calls. 293 
 
 on the ground of this duty not having been properly 
 fulfilled, though the directors might be compellable 
 to correct their error, and put all the shareholders 
 on an equal footing in respect of the calls to be 
 made on them, {a) 
 
 399. As to the time of making calls. In general 
 the time of making this or that particular call is left 
 to the discretion of the directors, subject, however, 
 to a certain condition as to the aggregate amount of 
 such calls in any one year, and the interval that 
 must elapse between each of the successive calls. 
 If either of these requisites be disregarded in the 
 making of a call, payment of it cannot be en- 
 forced, (b) 
 
 400. The amount of each several call is another 
 requisite in general prescribed by the statute, a non- 
 compliance with which is destructive of the validity 
 of a call. 
 
 401. Lastly. As to the /orma/iiies to be observed 
 in making calls, &c. Here the first step to be 
 noticed is the resolution of the directory, which in 
 general amounts to a mere announcement of a call 
 of a given amount per share being made on the pro- 
 prietors, &c., payable on such a day. The resolution 
 in general is required to be and is, in point of fact, 
 followed up by a notice, (c) specifying the time and 
 place of payment, and the party to whom it is to 
 
 (a) Mangles v. The Grand Collier Dock Company, 2 Railw. 
 Cas. 359; S. C. 10 Sim. 519. 
 
 (b) Stratford and Moreton Railway Company v. Slratton, 2 
 B. & Ad. 518. 
 
 (c) See Companies Clauses Consolidation Act (8 Vict. c. 16, 
 s. 22) post, App.
 
 294 Company as constituted under the Act. 
 
 be made. The resolution ought to be so worded as to 
 embrace all the parties liable to the payment of calls. 
 Accordingly, where the statute, in describing the 
 parties liable to pay calls, distinguishes between dif- 
 ferent classes of persons, the call should be framed 
 in language applicable to them all ; but where the 
 terms of the statute, though varied, are obviously 
 employed indiscriminately, and point to the same 
 set of persons, then the employment of one of such 
 terms by the directors in their resolutions is sufficient, 
 as it must be taken to include the others, (d) 
 
 402. A resolution to make a call prospectively is 
 good, at least where there is nothing in the statute 
 requiring the directors to make the calls imme- 
 diately ; because the exigencies of the company, 
 and the nature of their debts and engagements, may 
 well be such that the amount of calls would as cer- 
 tainly be wanting at a future day as on the very day 
 when the resolution is made, (e) 
 
 403. According to the usual provisions of a rail- 
 way act, the insertion of a time and place of pay- 
 ment and the payee's description, is not essential to 
 the validity of the resolution of the directors; provided 
 these particulars are sufficiently notififed to the share- 
 
 (d) The West London Railway Company v. Bernard, 22 Law 
 Journ. Q. B. 68 ; S.C. but not S.P. 3 A. & E. N. S. 876; see 
 also London Grand Junction Railway Company v. Freeman, 
 2 Railw. Cas. 468 ; S. C. 2 M. & Gr. 606 ; Great Narth of Eng- 
 land Railway Company v. Biddulph, 2 Railw. Cas. 401 ; 5. C. 
 7M. & W,243. 
 
 (e) The Sheffield, Ashton-itnder-Lyne, a7id Manchester Railway 
 Company v. Woodcock, 2 Railw. Cas. 531 ; S. C. 7 M. & W. 
 574.
 
 Of Calls. 295 
 
 holders in the subsequent advertisement, [f) Neither 
 is it necessary, in order that the latter document may 
 thus operate as supplementary to the former, to show 
 the authority of the secretary, &c. to make the pub- 
 lication ; because such an authority by the directors 
 must be presumed as an act obviously within the 
 scope of their duty, or, at all events, that they adopted 
 the officer's act, unless the contrary is shown. (^) 
 
 (/) Ibid. ; see also The Great North of 'England Railway 
 Company v. Biddulph, ubi supra ; The London and Brighton 
 Railivay Company v. Fairclough, 2 Railw. Cas. 545 ; S. C. 2 
 M, & Gr. 674. 
 
 (^) London and Brighton Railway Company v. Fairclough, 
 ubi supra.
 
 ( 296 ) 
 
 CAP. IV. 
 
 Of the Construction (a) of the Railway. 
 
 404. In the construction of the railway the com- 
 pany must take care to adhere to the parliamentary 
 line, or at any rate not to deviate beyond the limits 
 permitted by their act. (6) They must likewise 
 conduct their works, excavations, &c. with all rea- 
 sonable skill and care, so as to avoid, as far as is 
 possible, endangering adjoining property, (c) More 
 particularly they must be cautious not to do any 
 thing to the detriment of any species of property 
 which is protected by their act.((?) And, generally, 
 in the conduct of their operations, they must comply 
 with the various conditions imposed by the legis- 
 lature on the exercise of their powers of making the 
 railway, (e) 
 
 (a) As to provisions of Railway Clauses Consolidation Act 
 (8 Vict. c. 20) on this head, see act, ss. 6 — 24, post, App. 
 
 (6) See ante, p. 76, et seq. 
 
 (c) See ante, pp. 180, 181. 
 
 (rf^ Turner v. Sheffield and Rolherham Railway Company^ 10 
 M. & W. 425. 
 
 (e) Under the 5 & 6 Vict. c. 9, s. 11, money may be ad- 
 vanced at interest or otherwise out of the consolidated fund to a 
 limited amount, to any corporate body or company of proprie- 
 tors, or any person or persons engaged in, &c. any public works 
 carried on under the authority of parliament, or to any trustee or 
 trustees of roads or railways, subject to such conditions respec-
 
 Of the Construction of the Railway. 297 
 
 tively, and upon such securities, as are prescribed by the various 
 acts authorizing loans of Exchequer bills for public works. 
 
 Whenever the appointment of special constables ('see 1 & 2 
 W. 4, c. 41, and 5 & 6 W. 4, c. 43) has been occasioned by the 
 behaviour or by reasonable apprehension of the behaviour of per- 
 sons employed on any railway or other public work carried on 
 under the authority of parliament, any two or more j ustices usually 
 acting for the district, &c. within which such works are carried on, 
 may make an order on the treasurer or other officer having the 
 control, &c. of tlie funds of the company making the railway, &c., 
 for the payment of the reasonable expenses incidental thereto (1 
 &: 2 Vict. c. 80, s. 1.) The Secretary of State may disallow the 
 order, or reduce the amount if excessive. For corresponding 
 enactments as to railways in Ireland, see stat. 8 & 9 Vict. c. 46, 
 which provides for the appointment of additional constables for 
 keeping the peace and the protection of property near railways, 
 the payment, recovery or levying of expenses incidental thereto, 
 &c. ; see also stat. 6 Sc 7 W. 4, c. 13. 
 
 5
 
 ( 298 ) 
 
 CAP. V. 
 
 Of the User of the Raibvay. 
 
 Sect. I. — Of the User generally. 
 II.— Of the Right to Tolls. 
 
 III. — Of the Traffic on the Railway, and herein of the Com- 
 pany viewed as Carriers. 
 
 1. Of Goods. 
 
 2. Of Passengers. 
 
 Sect. 1. — Of the User generally. 
 
 405. Assuming the railway and all necessary works 
 to be constructed, it is proposed in the next place 
 to treat of the provisions made for the use of such 
 railway. The general principle by which the legis- 
 lature has been guided in framing the usual pro- 
 visions found in railway acts on this head appears 
 to have been this, viz. to secure to the public the 
 most beneficial use of the railway that is consistent 
 with a due regard to the interest of the railway 
 company, and their adequate remuneration for the 
 expenses necessarily incidental to the undertaking. 
 With this view, a railway act usually enacts,(a) that 
 all persons shall have free liberty to use the railway, 
 with carriages properly constructed, upon payment 
 
 (a) See Railway Clauses Consolidation Act (8 Vict. c. 20), 
 s. 92, post, App.
 
 Of the User generally. 299 
 
 of the rates and tolls demandable by the company, 
 and subject to the rules and regulations which they 
 shall from time to time make, under the authority of 
 their act. The effect of such an enactment is to 
 constitute the railway, in point of law, a highway 
 on which all the world have a right to carry goods 
 and passengers ; though in point of fact, the exer- 
 cise of the right is to a great extent impracticable, 
 as well from the want of any corresponding provision 
 with regard to (5) stations, warehouses, &c., as from 
 the nature of the mode of conveyance, which must 
 ever forbid, not merely all competition of rival car- 
 riers, but even the free use of the railway by private 
 carriages, (c) 
 
 406. In thus throwing open the railway to the pub- 
 lic the legislature has, at the same time, been careful 
 to provide for the interests of the company by em- 
 powering them not only to take certain tolls for the 
 tonnage of goods, &c., but themselves to become 
 carriers(c^). By virtue of the above provisions a two- 
 fold state of things may arise, either the company 
 may be simply the owners of the way on which 
 
 (6) Under this state of the law which gives the public no right 
 of access to the yards, stations, &c. of railway companies, al- 
 though the railway itself is thrown open to the public as a high- 
 way, semble, the directors of these companies may be taken to 
 have unlimited discretion in regard to the admission or exclusion 
 of public conveyances, &c. from access to their stations, &c. See 
 Rep. of Officers of the Railw. Dep. for 1842, pp. xx, xxi. 
 
 (c) Judgment of Lord Denman, C. J., in Reg. v. London and 
 South Western Railway Company, 1 A. & E. N. S. 575. See 
 also judgment of Wigram, V. C, in North Union Railway Com- 
 fany v. Bolton and Freston Railway Company, 3 R. Cas. 364. 
 
 (d) See Railway Clauses Consolidation Act (8 Vict. c. 20), 
 s. 86 et seq. post, App.
 
 300 Of the User of the Railway. 
 
 others place steam-power and carriages, and convey 
 persons and goods, in which -case the two parties 
 would stand much in the same relation to each other 
 as the trustees of a turnpike road and the coach and 
 postmasters conveying passengers on it; or the com- 
 pany may avail themselves of the latter clause and 
 "unite both characters of owners of the way and 
 carriers on it.(e) 
 
 Sect. 2.— Of Tolls. 
 
 I. — Of the general Nature and Extent of the Right to Tolls. 
 II. — How it may be defeated. 
 
 407. I. As to the nature and extent of the com- 
 pany's right to tolls. An inquiry into the nature 
 and extent of the company's right to tolls involves 
 various points, viz. what description of article, &c. is 
 the subject of toll within the provisions of the com- 
 pany's act ; or, if tolls varying in amount or tolls of 
 a different character are imposed on the same article, 
 whether the one toll is to be construed as cumulative 
 and additional over and above the other, and if not, 
 which of the two is the one payable in the particular 
 case, &c. The principle, however, by which the 
 decision must be governed in all these cases is 
 uniformly the same, viz. that, to entitle the company 
 to toll, there must be a plain declaration of the in- 
 
 (e) Ibid. There is a third and intermediate state of things 
 -wJiich, though it has not been thought necessary to notice it in 
 the text, in point of fact has arisen in some instances, viz. 
 where the company supply the steam power but do not carry.
 
 OJ Tolls 301 
 
 tention ot the legislature to impose it ; (/) and con- 
 sequently if the language of the act is ambiguous, 
 or admits of different meanings, that constrction is 
 to be adopted which is most favourable to the inte- 
 rest of the public and against the company, {g) 
 
 408. A railway company were empowered by their 
 act to demand the following tolls : upon all coals, 
 &c. carried along the railway, a toll not exceeding 
 fourpence per ton per mile, &c. ; for all articles, &c. 
 for which a tonnage was thereinbefore directed to be 
 paid, which should pass certain inclined planes upon 
 the company's railway, a sum not exceeding one 
 shilling per ton ; and for all coal shipped for ex- 
 portation in the port of A., a toll not exceeding one 
 halfpenny per ton per mile. It was held, that the 
 lower toll of one halfpenny was not to be construed 
 as a cumulative toll over and above the higher, but 
 that the proper construction of the above provision 
 was to hold that the latter branch thereof excepted 
 the coals therein described out of the operation of 
 the general words of the first branch, and imposed 
 the lower duty thereon in lieu of the higher, and also 
 that all coals shipped for London, at a place within 
 the legal port of A., but at some distance from the 
 town of A., were coals shipped for exportation in 
 the port of A. within the meaning of the latter 
 branch of the provision so as to be entitled to the 
 benefit of the reduction, and this though in a former 
 part the act spoke of the port and town of A.(;0-) 
 
 ( /") Judgment of Lord Ellenborough,C. J., in Gildart v. Glud- 
 stone, 11 East, 675; judgment of Tindal, C. J., in Ba?-?-eU v. 
 The Stockton and Darlington liailway Company, 2 M. & Gr. 
 165. 
 
 (g) Barrett v. The Stockton and Darlington Railway Company, 
 2 M. & Gr. 134 ; S. C, in error, 3 M. & Gr. 956.
 
 302 0/ the User of the Railway. 
 
 409. The above principles of interpretation are 
 not to be pushed to such an extent as to defeat the 
 company's right to toll, where, upon the fair con- 
 struction of the words of the act, the intention of 
 the legislature to impose the toll is sufficiently^ clear. 
 Thus, in the case above referred to, it was held that 
 the duty payable in respect of passing the inclined 
 plane was clearly intended to be superadded to the 
 distance duty in all cases where coals passed over 
 the inclined plane, and was therefore payable as 
 well on coals intended for exportation as others. {Ii) 
 And again, where an act provided that every car- 
 riage conveying passengers was to be charged a cer- 
 tain tonnage per mile, it was held that the duty was 
 payable on the combined weight of the carriage and 
 passengers, the fair interpretation being that the 
 tonnage was to be taken upon the carriage with the 
 passengers upon it, and that the words " conveying 
 passengers" were not merely descriptive of the car- 
 riages but indicative of the matters that were to be 
 weighed, and to be in that respect subjected to a 
 tonnage, (i) 
 
 410. II. As to the manner in which the right to 
 tolls, supposing it to exist, may he defeated. To 
 take away a vested right to tolls, there must, it 
 seems, be a clear declaration of the purpose of the 
 legislature to that effect ; it cannot, therefore, in 
 general, be done by way of inference, (k) but only 
 by express words. An embankment company were, 
 by an act of parliament, authorized to make a road, 
 and to erect turnpikes across any ways leading or 
 
 (/i) See ante, p. 301, n. {g). 
 
 (i) The Edinburgh and Dalkeith Railway Company v. Wau- 
 chope, 3 Railw. Cas. 23'2. 
 
 (k) Rowe V. Shilson, 4 B. & Ad. 726.
 
 Of Tolls. 303 
 
 that might thereafter lead out of the same, and to 
 take tolls at such turnpikes. By subsequent acts, 
 another company were empowered to make a rail- 
 road, which was to be open to the public on pay- 
 ment only of such tolls as the railway company 
 should demand under the powers of their act ; the 
 railroad was made, and crossed the embankment 
 company's road. It was held that the embankment 
 company were entitled to demand a toll from all 
 persons who passed on the railway across their road, 
 the clause in favour of the public in the railway act 
 not taking away the vested right of the embankment 
 company to their tolls. (/) 
 
 Sect. 3. — Of a Raibvaij Company viewed as Carriers, 
 I.— Of Goods. 
 II. — Of Passengers. 
 
 Sub-Sect. 1. — Of a Railway Company viewed as 
 Carriers of Goods, (jn) 
 
 411. In treating of a railway company in the 
 
 (0 See ante, p. 302, n.(/c). 
 
 (m) If a carrier undertakes to convey goods, and avails him- 
 self of a railway for tlie purpose, he is himself liable for any 
 accident that may happen to the goods in the course of that mode 
 of conveyance, and the ovv'ner is not bound to look to the railway 
 company. Draper v. Shiirmer, Taunton, April 14, 1841. The 
 plaintiff, a lace manufacturer, despatched a bale of lace, directed 
 to go by the defendant's waggon from Bristol to Birmingham, be- 
 tween which places the defendant was a carrier. At Cheltenham 
 the waggon was put upon the Birmingham and Cheltenham Rail- 
 way, and a spark from the engine lighted on the tarpauline, and 
 the goods were burned. The substantial point raised was, whe- 
 ther a party undertaking to convey goods, and availing himself
 
 304 Of the User of the Railway. 
 
 capacity of carriers of goods, there are six points to 
 be considered: 1st, what are the duties and obliga- 
 tions of a railway company viewed in their capacity 
 of carriers ; 2ndly, what are the risks for which they 
 are liable at common law ; 3rdly, the commencement 
 and termination of those risks ; 4thly, the effect of 
 special contracts, and of particular enactments of the 
 legislature; othly, what will excuse or justify the 
 company's nondelivery of the goods ; and lastly, the 
 general rights of the company in that capacity. 
 
 412. First, then, of the duties and obligations of a 
 railway company as common carriers. One of their 
 duties is to receive and carry all goods offered for 
 transportation on receiving a suitable hire; (??) hence, 
 if they will not carry goods for a reasonable com- 
 pensation, upon an offer thereof, (o) and a refusal 
 of the goods, tliey become liable to an action, unless 
 there is reasonable ground for their refusal. But if 
 the goods tendered them are of a sort which they are 
 not accustomed to carry, or which they have no con- 
 venient means of carrying with security, {p) or they 
 are brought at an unreasonable time, those would 
 
 of a railway, with the knowledge of the owner, was himself liable 
 for any accident that might occur in the course of that mode of 
 conveyance, or whether the owner was to look to the railway 
 company. The plaintiff had a verdict for the full amount of his 
 goods. 
 
 (n) Ex farte Robins, 1 Dowl. P. C. 566. 
 
 (o) Pickford V. The Grand Junction Railway Company. 2 
 Railw. Cas. 592 ; S.C.8 M. & W. 372. 
 
 (p) Railway Companies are not in general bound to provide 
 means of carrying every possible description of goods, &:c., but 
 they have a discretionary power in this respect. The Liverpool 
 and Manchester Company however constitutes an exception to 
 this rule. See stat. 7 Geo. 4, c. 49, s. 138 ( Local and Personal).
 
 Of a Railway Company viewed as Carriers. 305 
 
 seem to furnish reasonable grounds for the com- 
 pany's refusal to take charge of the goods, and would, 
 accordingly, if true, be a good defence to an action 
 for the non-carriage of the goods, (y) 
 
 413. Another duty of the company, viewed as 
 carriers, is to provide suitable engines and carriages 
 for the transportation of the goods, (r) together with 
 all reasonable equipments, and proper servants to 
 take care of them ; they are also bound to take the 
 utmost care of the goods from the moment of re- 
 ceiving them, to forward (s) them with all reasonable 
 
 (5) Storey on Bailments, sect. 508. 
 
 (7-) Accordingly, where an animal is sent by a train, the com- 
 pany are liable for any injury that it may sustain, either by rea- 
 son of the improper construction of the carriage, Sec. in which it 
 is placed, or the improper position of such carriage, &c. in the 
 train. So ruled by Lord Denman, C. J., in Walker v. London 
 and South Western Railway Company, Kingston Spring Assizes, 
 1843. 
 
 (s) Where a railway company give notice by a board over 
 the door of their warehouse, that goods delivered after a parti- 
 cular hour will go forward the next working day, it has been 
 ruled that they are not bound to forward goods received after 
 that hour the same evening, and accordingly cannot be made 
 liable for failing to do so without proof of a special contract to 
 that effect ; Pickjord v. Grand Junction Railway Company, tried 
 at the Guildhall Sittings after H. T. 1844. As to what sufficient 
 evidence to go to the jury of such a contract, see same case, 
 12 M. & W. 766. Audeline v. London and South Western Rail- 
 way Company, N. P. Dec. 17, 1841. The question was as to 
 the liability of the company for the loss upon certain baskets of 
 plums, incurred through delay in delivering the same. The 
 company resisted the claim on the ground that the fault lay with 
 an intermediate agent, from whom the company received them, 
 and who misdirected the company as to the amount to be charged 
 for them. It appeared however that some ten minutes before 
 the starting of the train by which tiie goods were to go, fresh
 
 306 Of the User of the Railway. 
 
 speed, to obey the directions of the owner in respect 
 of tiiem, to carry them safely to their place of desti- 
 nation, and to make a right delivery of them there 
 according to the usage of trade or the course of 
 business. {() 
 
 414. 2ndly. Of the risks for which the company 
 are liable by the common law. A railway company, 
 by receiving goods for the purposes of carriage, place 
 themselves on the footing of common carriers, (u) 
 They are responsible, accordingly, for all losses, ex- 
 cept those occasioned by the act of God, or of the 
 queen's enemies, (w) By enemies are to be understood 
 public enemies, (x) Under the head of losses by 
 the act of God would seem to be comprehended all 
 misfortunes and accidents arising from inevitable 
 necessity, which human prudence could not foresee 
 or prevent, such, for instance, as losses occasioned 
 by natural causes, viz. lightning, earthquakes, tem- 
 pests, and the like, {y) 
 
 415. 3rdly. As to the commencement and termi- 
 nation of the risks of a railway company as common 
 carriers; and (1st,) of the commencement of the risk. 
 
 directions were given to the company correcting the mistake. 
 The judge directed the jury that in his opinion the fresh instruc- 
 tions being sufficiently intelligible, and being received the spe- 
 cified time before the train started, the company were bound to 
 have corrected the charge, for which there was ample time, and 
 that consequently they must be taken to have received the goods 
 upon a contract to deliver them on payment of the altered and 
 not the original charge. Verdict for the plaintiff. 
 
 (t) Storey on Bailments, sect. 509. 
 
 (u) Palmer v. Grand Junction Railway Company, 4 M. & 
 W. 752. 
 
 (i) Storey on Bailments, sect. 526. 
 
 (y) Ibid. sect. 511.
 
 Of a Railway Com'pany viewed as Carriers. 307 
 
 The liability of the company as carriers attaches from 
 the time of their acceptance of the goods, whether 
 that acceptance is in a special manner or according 
 to the usage of their-business. The usual mode is 
 by a delivery of the goods to the servants of tbe 
 company, or to some other person authorized to act 
 on their behalf; and as soon as the delivery is com- 
 plete, the responsibility of the company as carriers 
 commences. An acceptance in some way, actual or 
 constructive, is indispensable to charge the com- 
 pany. (2) 
 
 41 6. (2dly.) Of the termination of the risk ; as soon 
 as all is done with the goods that the duty of the 
 company as carriers requires them to do, their re- 
 sponsibility as such ceases. If the company receive 
 goods to be carried to the place of their destination, 
 and there deposited, as soon as the goods arrive at 
 the place in question, and are deposited in the com- 
 pany's warehouses, their responsibility as carriers 
 ceases, that being the terminus of their duty as such. 
 But if it is the duty of the company to deliver the 
 goods to the consignees at the place of their desti- 
 nation, then their liability as carriers does not cease 
 by such deposit ; but they are chargeable for any 
 loss which may occur until an actual delivery to the 
 party, (a) 
 
 417. With regard to the extent of the company's 
 duty in the matter of delivering the goods, it would 
 seem that in general the company are bound to deli- 
 ver them according to the address that is upon them, 
 and consequently can only discharge themselves by 
 
 {2) Storey on Bailments, sects. 532, 533. 
 (a) Ibid, sects. 538, 539.
 
 308 Of the User of the Railway. 
 
 such a delivery. (6) This general liability, however, 
 may in particular instances be limited by a special 
 contract between the parties, or, as it should seem, 
 by some local custom or usage of trade, (c) 
 
 *il8. If a company take charge of goods directed 
 to a particular place, and do not by positive agree- 
 ment limit their responsibility to a part only of the 
 distance, that is prim^ facie evidence of an under- 
 taking to carry them to the place to which they are 
 directed, even although that place avowedly be be- 
 yond the known limits of the company's business as 
 carriers. ((/) 
 
 419. 4thly. Of the effect of special contracts, or 
 particular statutory enactments, in qualifying the 
 above liabilities, &c. of a railway company. And 
 1st, of special contracts. A railway company may, 
 it is conceived, like any other common carrier, insist 
 on special and qualified terms on receiving goods 
 for the purpose of carriage ; (e) and in this case, 
 their liability will of course be measured by the 
 particular terms of the contract. The usual practice 
 of a railway company in this respect is, upon the 
 receipt of goods, to deliver to the consignee a ticket 
 explaining the terms upon which they are willing to 
 
 (fc) Judgment of Lord Denman, C. J., in Syms v. Chaplin, 5 
 A. &; E. 642 ; Hyde v. Trent and Mersey Navigation Company, 
 5 T. R. 389, by three judges, Lord Kenyon, C. J., dissenting ; 
 Golden v. Manning, 3 Wils. 429 ; Storr v. Crowley, M'Clel. & 
 Y. 129. 
 
 (c) Storey on Bailments, sects. 540, 541, 543. 
 
 (d) Muschamp V. Lancaster arid Preston Junction Railway 
 Company, 2 Railw. Cas. 607 ; S. C. 8 M. & W. 421. 
 
 (e) See argument of counsel in Pickford v. Grand Junction 
 Eailuay Company, 10 M. & W. 399.
 
 Of a Raihvay Company viewed as Carriers. 309 
 
 accept them. (/) Proof of the delivery on the one 
 side and the acceptance on the other of such a ticket 
 would seem sufficient to constitute a special con- 
 tract. (/) If there is no proof of the production 
 and delivery of the ticket to the other party, the 
 ground of exemption fails, and the company conse- 
 quently must be taken to stand on the ordinary 
 footing of carriers at common law. (/) But the 
 company cannot, it seems, by any special agreement 
 so limit their responsibility as to evade altogether 
 the salutary policy of the common law. {g) They 
 
 (/) Palmer V. The Grand Junction Railway Company, 4 M. 
 & W. 752. 
 
 (g) See Report of Officers of Railway Department of Board 
 of Trade, (1842, p. xix.) which contains the following remarks 
 upon this point : 
 
 " The carriers' act distinctly provides that no general notice 
 shall limit the liability of common carriers with regard to objects 
 other than those enumerated in the act, and the proper rule 
 appears to be, that although railway companies may refuse to 
 take charge of passenger's luggage, unless such reasonable regu- 
 lations as they find necessary to lay down are complied with, 
 yet that, if they do actually take charge of such luggage, they 
 incur the ordinary common law liability of carriers, subject only 
 to the limitations of the carriers' act. 
 
 " The same principles apply to regulations limiting the com- 
 pany's liability as regards carriages and horses. This is some- 
 times done by refusing to carry horses or carriages unless the 
 owner will sign a special agreement exempting the company from 
 all liability. This is clearly illegal as regards the general liabi- 
 lity, railway companies being bound like other carriers by the 
 common law to undertake the carriage of all articles offered to 
 them, unless there is some reasonable ground for refusal, and it 
 is only allowable to the extent of guarding against any extra- 
 ordinary risk arising from the nature or value of the object, unless 
 a proper insurance is paid. In the case of carriages it is gene- 
 rally admitted that there is no ground for charging any insu-
 
 310 Of the User of the Railway. 
 
 cannot therefore by any special terms discharge 
 themselves of all their duties as carriers in respect 
 of goods which they receive for the purpose of con- 
 veyance, (i) They must still, it is conceived, be 
 understood as contracting for the personal care and 
 attention of their agents and servants about their 
 carriage, and for delivering them at their proper 
 place of destination. If therefore the goods are sent 
 by a different conveyance, or in a different manner 
 from that implied by the undertaking of the com- 
 pany, the company, it is conceived, would be liable 
 for the loss, although otherwise they migjit have 
 been exonerated by the terms of a special contract. 
 And the same where the goods are carried by the 
 
 ranee ; but in the case of horses, it appears fair that the company 
 should not be responsible for accidents arising from the vicious- 
 ness or restiveness of the animal, and that they should not be 
 responsible for more than a fair average value, unless the horse 
 has been entered as of extraordinary value, and a reasonable 
 insurance paid." 
 
 That th.e company would not be held liable for accidents to 
 horses arising from the animal's own viciousness, &c. see post, 
 p. 315, u. (v). 
 
 The report goes on to remark in a subsequent part (p. xx), 
 that '' in two instances representations had been made to the 
 department of the Board of Trade to the effect that railway 
 companies were in the habit of enforcing an illegal regulation, 
 requiring parties who sent carriages or horses by the railway to 
 sign a special agreement, exempting the conipany from all 
 liability for loss, however occasioned. Letters were written to 
 the companies pointing out the illegality of such a course, ex- 
 cepting so far as might be necessary to protect themselves against 
 extraordinary risk, arising from the nature or value of the object, 
 and the result was, that the regulation as regarded carriages was 
 entirely withdrawn, and as regarded horses modified, in con- 
 lormity with the principles above stated." 
 
 (i) Storey on Bailments, sect, 549.
 
 Of a Railway Company viewed as Carriers. 311 
 
 company beyond their place of destination, and are 
 lost. And generally a special contract cannot ope- 
 rate to exempt the company from responsibility in 
 cases of gross negligence and fi-aud. (/;;) 
 
 420. Although, as we have just seen, it is com- 
 petent for the company to insist on special terms on 
 receiving goods for carriage, yet those terms must 
 be reasonable, and semble, should not go beyond 
 what is necessary to guard them against extraordi- 
 nary risks incidental to the carriage of particular 
 descriptions of goods, or else to secure them the 
 payment of a due insurance for the same. It would 
 therefore, it is conceived, be illegal for a railway 
 company to require parties sending any particular 
 description of articles by the railway, such, for in- 
 stance, as carriages or horses, to sign a special 
 agreement exempting the company from all liability 
 for loss however occasioned. 
 
 421. It is proposed in the next place to consider 
 the effect of the carriers' act in qualifying the posi- 
 tion of a railway company as common carriers. As 
 a railway company, when they take goods for the 
 purpose of conveyance, thereby place themselves on 
 the footing of any other common carrier, it seems 
 clear that they must, in all that respects their cha- 
 racter of carriers, be within the scope of the act. 
 To consider the effect then of the statute more at 
 large, let us consider, (1st,) the duties which it im- 
 poses on each party to the contract ; (2ndly,) on 
 whom it is obligatory ; (3rdly,) to what articles the 
 act applies ; (4thly,) the liability to which the com- 
 pany as carriers remain subject, notwithstanding the 
 act ; and (lastly,) the general results of the act. 
 
 (k) Storey on Bailments, sects. 549, 561.
 
 312 Of the User of the Railway. 
 
 422. (1st.) Of the duties imposed on each party 
 by the statute. The company must take care to 
 affix in all their offices, warehouses and receiving 
 houses a proper notice within the meaning of the act, 
 notifying the increased rate of charge which they 
 demand for all goods comprised in the act. (J) The 
 company are also bound, if required, to give a re- 
 ceipt for parcels, acknowledging them to have been 
 insured. (»2) To constitute an office, receiving house, 
 &c., within the meaning of the above provision, no 
 regidar or formal appointment is necessary ; but any 
 place is to be deemed such where the company's 
 trains are in the habit of stopping and taking in 
 parcels. (?i) On the other hand, the owner of the 
 goods is bound, at the time of delivering them at 
 the company's offices, &-c., provided, that is to say, 
 a proper notice is affixed there, to declare the value 
 of the goods, and pay or enter into an engagement 
 to pay the increased charge required by the com- 
 pany for insuring them, (o) Though the circum- 
 stances of the case are such as show an actual or 
 presumed knowledge on the part of the company's 
 servants of the contents of a parcel, yet this is no 
 equivalent for what is required by the act : but 
 there must be an express formal declaration of the 
 value, (p) 
 
 423. (2ndly.) On whom the statute is obligatory. 
 Provided the company comply with the statute, by 
 affixing a proper notice in their offices, &c. the sta- 
 
 (/) 11 Geo. 4 and 1 Will. 4, c. 68, sect. 2. 
 (m) Ibid. sect. 3. 
 
 (n) See Syms v. Chaplin, 5 A. 6c E. 642. 
 (o) 11 Geo. 4 and 1 Will. A, c. 68, sect. 1. 
 Ip) Boys V. Pink, 8 C. & P. 362.
 
 Of a Railway Company viewed as Carriers. 313 
 
 tute is obligatory on all persons delivering goods of 
 the specijted class and value there, and this without 
 further proof of the notice having come to their 
 knowledge, {q) 
 
 424. (3rdly.) 0{ the description of articles falling 
 within the statute. The statute, it would seem, ap- 
 plies generally to all articles of the kind enumerated 
 in the first section. Glass, for instance, being one 
 of the articles which it enumerates, it must be taken 
 to apply not to small glasses only, but to glass arti- 
 cles of every description, if exceeding \Ql. in value. 
 The preamble indeed speaks of articles in a small 
 compass ; but these words are not found in the enact- 
 ing part of the section, and the object of the statute 
 requires that full effect should be given to the gene- 
 ral terms there employed, and that their operation 
 should not be cut down by the above words in the 
 preamble, (r) 
 
 From the terms in which the statute speaks of one 
 particular kind of article, viz. silks, composite articles 
 in general can hardly, it is conceived, be taken to 
 fall within its meaning, at any rate not unless all the 
 component parts of such articles are of the enume- 
 rated kinds, (a) 
 
 4^5. (4thly.) Oi i\\e degree of liability of the com- 
 pany as carriers, notwithstanding the statute. If a 
 railway company comply with the statute, by affix- 
 
 (g) 11 Geo. 4 and 1 Will. 4, c. 68, sect. 2. If the requisite 
 notice is not affixed, the company are not within the protection 
 of the act, and cannot consequently allege the want of a decla- 
 ration of value, &c. on the part of the owner as a ground of de- 
 fence to an action for the loss, &c. of the goods. 
 
 (r) Oixen v. Burnett, 4 Tyr. 133 ; S. C. 2 C. & M. 353. 
 
 (s) Mayhexo v. Nelson, 6 C. & P. 58. 
 
 P
 
 314 Of the User of the Railway. 
 
 ing in their offices, &c, a proper notice within the 
 meaning of such statute, then if a party sends goods 
 of the specified kinds and value by the company's 
 trains, without making a declaration of their value, 
 and without paying or engaging to pay the increased 
 rate of charge specified in any such notice, the com- 
 pany are discharged from all responsibility as car- 
 riers for any loss or damage happening to the goods, 
 and this even though the loss, &c. be caused by the 
 gross negligence of the company and their ser- 
 vants, {t) For the felonious acts indeed of their 
 servants the company are still liable, the exemption 
 being in this case taken away by the express words 
 of the statute ; and the same rule would seem to 
 apply to cases of wilful damage or misfeasance, 
 wholly independent of the company's character as 
 carriers, (m) 
 
 426. (Lastly,) as to the .main results of the act ; 
 these may be briefly summed up under two heads ; 
 1st, the company are relieved from the burden of 
 proving that the notice has actually come to the 
 party's knowledge who is to be affected by it; 2ndly, 
 they are secured the adequate information as to the 
 nature of the article that may enable them to provide 
 for its due protection on the road, and also an in- 
 creased compensation for the greater risk and liabi- 
 lity, or else they are discharged from all liability as 
 carriers in respect of any loss or damage happening 
 to the goods, which, under the circumstances, the 
 owner must be considered to take on himself. 
 
 427. The next head of inquiry is, as to what will 
 
 (0 Hiuton V. Dibbin, 2 A. & E. N. S. 646. 
 (m) See argument o( Sir W. Follett, ibid.
 
 Of a Railway Company viewed as Carriers. 315 
 
 excuse or Justify the non-delivery of the goods by 
 the company. In the first place, it is a sufficient 
 justification for the company to show that, without 
 any negligence on their part, the goods have been 
 lost by the act of God or of the king's enemies ; or, 
 in cases of especial limitation of responsibility, that 
 the loss was one against which they were protected 
 by the terms of the limitation, {x) 
 
 428. The company may also show in their defence 
 that the goods have perished owing to their not 
 being properly packed, or from some internal de- 
 fect, (y) without any fault on their side ; and, if from 
 
 (x) Storey on Bailments, sect. 574. 
 
 (y) So in the case of an animal sent by the railway, it has been 
 ruled that the company are not liable for an accident arising 
 from the animal's own viciousness or want of temper ; Walker v. 
 The London and South Western Railway Company, Kingston 
 Spring Assizes, 1843. 
 
 The above ground of defence, that the injury was owing to 
 some internal defect in the articles themselves, or to the improper 
 mode of packing, &c. is one that has in various instances been 
 set up by railway companies. In Norman v. London and Brigh- 
 ton Railway Company, which was an action for an injury to 
 some chairs sent by the defendants' railway, the company at- 
 tempted to show that the chairs were of inferior materials and 
 badly packed, though ultimately the plaintiff' had a verdict. 
 Home Circuit, May, 1843. 
 
 Again, in Lucas v. Birmingham and Gloucester Railway Com- 
 pany, which was an action against the company as carriers for a 
 loss by leakage from a flask of essential oil of lemons, the de- 
 fence was, that the loss arose from the improper packing of the 
 case containing the flask, and not from any negligence on the 
 part of the company. The plaintiff, however, obtained a verdict. 
 Oxford Spring Assizes, 1842. 
 
 So in Rntley v. South- Eastern Railway Company, Spring As- 
 sizes, 1845. Maidstone. This was an action for the loss of some 
 linen goods sent by the defendants* railway, owing, as it ap- 
 p2
 
 316 OJ the User of the Railway. 
 
 the nature of the goods carried, they are liable to 
 peculiar risks, and the company take all reasonable 
 care and use all proper precautions to prevent inju- 
 ries, and notwithstanding they are destroyed by such 
 risks, they are not answerable. (2) 
 
 429. Again, the company will be excused by any 
 act of the bailor which terminates their respon- 
 sibility as carriers, as if with the consent of the 
 bailor they deliver them over to another carrier, or 
 deposit them at some intermediate place to await 
 the future orders of the bailor, or the latter take 
 them into the exclusive custody of himself or his 
 servants, {a) 
 
 430. Another ground of excuse is that resulting 
 from the right of the consignor to stop the goods in 
 the possession of the company while they are still 
 in transit. This right exists only in cases where 
 certain circumstances concur, viz. where the goods 
 are sold on a credit ; where the consignee is in- 
 
 peared, to sparks frora the engine getting inside the truck, and 
 setting the bale containing the linen on fire. The defence was, 
 that the goods were not properly packed, the tarpauline, which 
 covered the truck, having been full of holes. The plaintiff, 
 however, had a verdict. 
 
 And where a carrier received several packages, one of watches, 
 another of flutes, &:c., and put thera all up in one bag, and so 
 sent them by railway, and the flutes were injured, it was left to 
 the jury to sav whether the accident was attributable to the 
 carelessness of the company, or whether the plaintiff, by his owu 
 improper proceeding, contributed to the disaster, the mode of 
 packing adopted by him having thrown upon the company a 
 more onerous task than if they had received the articles sepa- 
 rately ; Smith v. London and Birmingham Railway Company, 
 IMidland Circuit, 1845. 
 
 (z) Storey on Bailments, sect. 576. 
 
 {a) Ibid. sect. 578.
 
 Of a Railway Company viewed as Carriers. 317 
 
 solvent ; where the goods are still in transit ; and 
 where the buyer has not yet parted with his owner- 
 ship to any bona fide purchaser under him. {h) 
 
 431. Lastly, of the general rights of a railway 
 company as common carriers. A company, under the 
 usual provisions of a railway act, have a right to fix 
 their own charges for the carriage of goods, &c., sub- 
 ject only to the conditions imposed by their act. It 
 usually forms part of these conditions that the charges 
 shall be reasonable and equal to all persons, (c) and 
 that no favour shall be shown thereby to one person 
 or description of persons at the expense of another. 
 The criterion for determining how far a charge is 
 reasonable or not, is to consider the trouble, expense 
 and responsibility attending the receipt, carriage 
 and delivery of the goods in question. Where these 
 are equal, the charge should be the same ; where 
 they vary, the charge may fairly be varied in the 
 same proportion. For instance, for small parcels 
 more may fairly be charged by the company than 
 a proportionate part, according to weight, of the 
 price of larger parcels of the same commodity, by 
 reason of the greater trouble in receiving, dis- 
 patching and delivering them, and their exposure 
 to a much greater risk of abstraction or loss. But 
 if a number of small parcels are united in one large 
 package, and in that state delivered to the company, 
 consigned to one person, the trouble and respon- 
 sibility are reduced to much the same degree, as if 
 all the articles contained in the package were the 
 property of the same owner and intended to be 
 delivered to him, the only difference being, that in 
 
 (6) Storey on Bailments, sects. 580, 581. 
 (c) Or equal under the like circumstances. See Railway 
 Clauses Consolidation Act (8 Vict. c. 20), sect. 90, post, App.
 
 318 Of the User of the Railway. 
 
 the former case, supposing a misdelivery or other 
 conversion of the goods by the agents or servants 
 of the company, the company would be liable to 
 several actions of trover instead of one. The com- 
 pany therefore can have no right to charge for the 
 package of distinct parcels belonging to different 
 owners more than if they belonged to the same, 
 with the exception, perhaps, of some slight addi- 
 tional remuneration in the former case on account 
 of their liability not to pay greater damages, (for 
 they would be the same in both cases,) but to pay the 
 same damages by different suits. A charge there- 
 fore going beyond this would be clearly unreasonable 
 as not being justified by the increase of responsi- 
 bility arising from the circumstance of the proper- 
 ties being separate, (rf) as, for instance, where it was 
 sought to enforce a charge of 4^. Is. 8rf. for one 
 package, for which, according to the company's list 
 of charges, 1/. 6s. Qd. would have been the proper 
 charge, had it consisted of parcels being one property, 
 and Si. Is. Gd. instead of 9s. for another. So like- 
 wise, to charge the same sum to a consignee who is 
 willing to receive the goods at the railway terminus, 
 and to one who requires them to be delivered at 
 their place of destination, is both unreasonable and 
 unequal, {d) 
 
 432. What is sometimes made a second requisite 
 of the charges of a railway company is, that they be 
 equal to all persons. Where this is the case, a com- 
 pany cannot so frame their charges as to give a mo- 
 nopoly to a particular individual, or give an advan- 
 tage to one inflividual and withhold it from another 
 
 (d) Pickfoi-d V. The Grand Junction Railway Company, 10 
 M. & W. 399.
 
 Of a Railway Company viewed as Carriers. 319 
 
 under similar circumstances ; (?) neither can a rail- 
 way company be allowed to make a difference in 
 their charges to the public at large and to a parti- 
 cular class or description of individuals to the pre- 
 judice of the latter. Accordingly, if a railway com- 
 pany arrange with a particular carrier that he shall 
 deliver for them all goods coming by their railway, 
 and for so doing shall be allowed a certain per cent- 
 age on the charges for carriage made to the public 
 at large, they cannot refuse to make the same allow- 
 ance to another carrier who is willing to perform all 
 that the favoured carrier does in respect of it. (e) 
 Upon a like principle, where a railway company 
 allow carriers in general a deduction of so much per 
 cent, on the charge for carriage made to the public 
 at large for the performance of certain duties, they 
 are bound to make the same allowance to a par- 
 ticular carrier, willing to perform, and, in fact, 
 performing all the duties performed by the other 
 carriers, (e) notwithstanding the company are them- 
 selves ready and willing to perform all things that 
 form the consideration for the allowance. 
 
 433. So where a company adopted a scale of 
 charges, according to which, if one of the public 
 brought several packages and paid the carriage, he 
 was charged upon the weight of the aggregate only, 
 and this, although the goods belonged to different 
 consignees ; and the same, where several of the 
 public brought several packages, addressed to a 
 single consignee, who was to pay the charges ; but 
 in case of a carrier bringing several packages for 
 
 (e) Parker v. The Great Western Raihcay Company, 22 Law 
 Journ. C. P. 105 ; S. C. 7 M. & Gr. 253 ; 7 Scott's N. R. 835. 
 See also Pickford v. The Grand Junction Railway Company, 10 
 M. & W. 399.
 
 320 Of the User of the Railwatj. 
 
 conveyance, consigned by or to different persons, 
 he was charged upon the separate weight of each 
 package, unless it were known that more that one 
 package belonged to the same consignor, and was 
 going to the same consignee, in which case all be- 
 longing to the same sender, and going to the same 
 consignee, were charged upon their aggregate weight, 
 it was held that the company were not justified in 
 making this distinction between carriers and other 
 members of the public. (/) 
 
 434, What the company cannot do directly, they 
 cannot do indirectly. They have no right therefore 
 ;o impose certain conditions (which their act does 
 not authorize them to impose) on persons bringing 
 goods for the purpose of conveyance, and in case of 
 those conditions not being complied with, to make 
 a higher rate of charge by way of penalty on the 
 recusants. (/) Where, therefore, a railway com- 
 pany made an allowance to carriers in particular 
 cases, where they disclosed the name of the con- 
 signors and consignees of the goods, it was held 
 that they were not justified in withholding from a 
 carrier, who refused to make such disclosure, any 
 allowance to which he would otherwise have been 
 entitled. (/) 
 
 435. The usual provision for the equality of 
 charges, it has been held, is intended to prevent 
 companies, when they get the monopoly of the car- 
 riage of the public, from exercising that monopoly 
 to the prejudice of individuals ; it cannot therefore 
 be construed to bind a railway company in every 
 case to observe an uniform rate of mileage, provided, 
 at least, that there is nothing in the variation of the 
 
 (/) Parker v. The Great Western Railway Company, ubi 
 supra.
 
 Of a Railway Company viewed as Carriers. 3 "31 
 
 rate calculated to give an advantage to one individual 
 at the expense of another, or generally to prejudice 
 the interests of the public, {g) or otherwise militating 
 against the provisions of the company's act ; but they 
 may charge a short passenger at a higher rate than 
 a long one for passing over the same distance, {g) 
 
 436. A railway company, like any other carriers, 
 are in all cases entitled to be paid the price of car- 
 riage upon the receipt of the goods, {h) and if not 
 paid, they may refuse to take charge of them. If, 
 however, they take charge of them without the hire 
 being paid, they may afterwards recover it. (i) 
 
 437. By virtue of the delivery of goods to a rail- 
 way company for the purposes of carriage they ac- 
 quire a special property in them, and may main- 
 tain an action against any one who displaces their 
 possession, or does any injury to the goods. (^) 
 
 438. Lastly, the company are entitled to a lien 
 on the goods for their hire, and are not compellable 
 to deliver them until they receive it, unless they 
 have entered into some special contract by which it 
 is waived. Their lien may also be defeated by giv- 
 ing up the possession of the goods. (/) 
 
 (g) An. Gen. v. Birmingham and Derby Railway Company, 
 2 Railw. Cas. 124. Qusre however as to the validity of the posi- 
 tion here laid down on the authority of the above decision ; the 
 Court of Queen's Bench having subsequently granted a mandamus 
 against the Birmingham and Derby Railway Company in order 
 to reconsider the point in question ; though, owing to the company 
 that obtained the mandamus and the Birmingham and Derby af- 
 terwards being amalgamated, the writ dropped to the ground. 
 
 (h) Pickford v. The Grand Junction Railway Company, 2 
 Railw. Cas. 592 ; S. C, 8 M. & W. 372. 
 
 (i) Storey on Bailments, sect. 586. 
 
 {k) Ibid. sect. 585. 
 
 (I) Ibid. sect. 588. 
 
 p5
 
 322 Of the User of the Railway. 
 
 Sub-Sect. 2. — Of the Company viewed as Passenger 
 Carriers.' 
 
 4:39. Having considered the rights, duties and 
 liabilities of a railway company as carriers of goods, 
 it is proposed, in the next place, to view them as 
 carriers of passengers. In this capacity they are 
 not subject to so extensive a responsibility as in the 
 former. They are not, accordingly, liable for mere 
 accidents happening to the persons of passengers, 
 but only for want of due care. It may be useful, 
 however, to consider somewhat more at large the 
 position of the company as carriers of passengers, 
 and herein of their duties, liabilities and rights as 
 such. 
 
 440. 1st. Of their duties in the commencement of 
 the journey. The first and most general obligation 
 on their part is to carry passengers whenever they 
 offer themselves and are ready to pay for their 
 transportation, (m) 
 
 441. In the next place, the company are bound 
 to provide engines and carriages reasonably strong 
 and sufficient for the journey, with all suitable equip- 
 ments, and to make a proper examination thereof 
 before each journey. If an accident happen from 
 the defective construction (n) of any engine, carriage, 
 
 (m) Storey on Bailments, sect. 591. 
 
 (n) Whitnall v. Manchester and Leeds Railway Ccmpany. 
 That was an action for an injury sustained by the piaintiif, owing 
 to the door of the carriage in which he was riding, and against 
 which he was pressing at the time, bursting open, and throwing 
 him out. The carriage, it appeared, had no seats. The plain- 
 tiff charged the company with negligence, on the ground of the 
 door not having a proper fastening. The company endeavoured
 
 Of a Railway Company viewed as Carriers. 323 
 
 &c., the company, it is conceived, are liable, even 
 though the defect be out of sight and not discover- 
 able upon an ordinary examination, (o) 
 
 442. In the next place, the company are bound 
 to provide engine drivers, guards, &:c. of reasonable 
 skill and good habits for the discharge of their se- 
 veral duties, and who are also competently acquainted 
 with the line of railway, its differences of inclination, 
 embankments, cuttings, and the like, so as to regu- 
 late the pace of the train accordingly, {p) 
 
 443. In the next place, they are bound to receive 
 and take care of the usual luggage which it is cus- 
 tomary to allow every passenger to carry for the 
 journey. {q) 
 
 444. 2ndly of their duties on the progress of the 
 journey. They are bound to stop at the usual 
 places, and to allow the usual intervals for the 
 refreshment of the passengers, and they cannot, at 
 their mere caprice, vary or annul these accommo- 
 dations, (r) 
 
 445. They are bound to make use, by their ser- 
 vants, of all the ordinary precautions for the safety 
 of passengers on the journey. This involves a con- 
 sideration of the duties of the engine driver, &c. in 
 the conduct of the train. If the driver is guilty of 
 
 to show that the accident was attributable to the plaintiff's own 
 conduct. But the jury found a verdict for the plaintiff. North- 
 ern Circuit, 1842. 
 
 (o) See Storey on Bailments, sect. 592; Sharp v. Grey, 2 M. 
 & So. 620 ; S. C. 9 Bing. 457. 
 
 (p) See Storey on Bailments, s. 593. 
 
 (q) Ibid. s. 595. 
 
 (r) Ibid. s. ,597.
 
 324 Of the User of the Railway. 
 
 any rashness, negligence, or misconduct, or is want- 
 ing in due skill, the company will be responsible for 
 the injury thereby occasioned. If, for instance, he 
 increases the speed of the train to such a pitch as is 
 in all reason inconsistent with its safety, if at a part 
 of the road which is more than ordinarily dangerous 
 from the general nature of the ground, the con- 
 struction of the railway, &c., he does not employ 
 an increased degree of caution and watchfulness pro- 
 portionate to the necessary increase of risk, and an 
 accident happens in consequence, the company are 
 answerable. So, if by want of due skill or care, a 
 train under his management comes in collision with 
 another train. («) 
 
 446. Lastly, of the company's duties on the termi- 
 nation of the journey. In all cases the company are 
 bound to carry the passengers to the end of their 
 journey, and to put them down at the usual place of 
 stopping. (<) If (as is ordinarily the case where a 
 train goes a long distance) the company accept pas- 
 sengers to be set down at intermediate places on the 
 route short of the entire distance, they are, it should 
 seem, bound, upon the train's arrival at each of such 
 places, to give timely notice to the psssengers. It', 
 in spite of such notice, a passenger suffers himself 
 to be carried on, he must bear the consequences of 
 what cannot but be considered as his own negli- 
 gence, and perhaps may even be subject to pay the 
 additional fare for the increased distance which he 
 is thus obliged to travel. 
 
 447. Next as to the liabilities of the company as 
 
 (s) Storey on Bailments, s. 598. 
 {t) Ibid. s. 600.
 
 Of a Railway Company viewed as Carriers. 325 
 
 carriers of passengers. (m) These flow naturally 
 from their duties ; not being insurers, their under- 
 taking is not an undertaking absolutely to convey 
 safely ; but they are bound only to due care and 
 diligence in the performance of their duties. («<) But 
 what is to be the measure of this due care and dili- 
 gence ? Considering the frightful and very alarming 
 risks to which the travelling by railway is incident, 
 a less stringent rule, cannot, it is conceived, be 
 adopted than that which applies to ordinary passen- 
 ger carriers, (a;) The company therefore must be 
 considered as binding themselves to carry safely 
 those whom they accept for passengers as far as 
 human care and foresight will go ; that is, for the 
 utmost care and diligence of very cautious persons, 
 and they are consequently to be deemed liable even 
 for slight negligence, (a;) 
 
 448. But the company as passenger carriers, not 
 being insurers, are not responsible for accidents, 
 where all reasonable skill and diligence have been 
 employed, (m) However serious therefore the in- 
 jury that a passenger may receive in journeying by 
 railway, if there be no negligence, the company are 
 exonerated, (a;) 
 
 449. In case of an accident happening to a passen- 
 ger by railway, it would seem to rest with the com- 
 pany, as having the control of the railway, and of 
 all the machinery employed upon it, to explain the 
 cause of the occurrence, and to show, if they can, 
 
 (u) See Carptie v. The London and Brighton Railway 
 Company, 22 Law Journal, Q.B. 133 ; S. C. 5 A. k E. N. S. 
 747. 
 
 (x) See Storey on Bailments, 601, 602.
 
 326 Of the User of the Railway. 
 
 that it was wholly accidental, and not produced by 
 any misconduct or negligence on their part, {y) 
 
 450. With respect to the luggage of passengers. 
 Where a passenger books and pays for his luggage, 
 the company are liable for it as common carriers. 
 But even where they receive no specific compensa- 
 tion therefore, and receive simply their fare for the 
 passage of the passenger, yet are they responsible 
 (if not as common carriers) at least for due and 
 reasonable care of such baggage. Indeed it would 
 seem to be by no means settled whether as to pas- 
 sengers' luggage, even without distinct compensation, 
 the company are not liable in the former character, 
 viz. as common carriers ; and perhaps the tenor of 
 the authorities may rather be in favour of this, as 
 the true modern rule upon the subject. (2) 
 
 451. This supposes that the company do not pro- 
 tect themselves as to the luggage of passengers by 
 some special contract on the subject, (a) Usually, 
 
 (2/) See Carpue v. The London and Brighton Railway Cum- 
 pany, 22 Law Journal, Q.B. 133 ; S. C. 5 A. & E. N. S. 747. 
 
 (s) See Storey on Bailments, ss.498, 499. 
 
 (a) There are some remarks on the subject of passengers' 
 luggage in the Report of the Officers of the Railway Depart- 
 ment of the Board of Trade, (a.d. 1842,) which it may be proper 
 to notice in this place, and which are as follows : — 
 
 " Several railway companies have regulations limiting their 
 liabilities in regard to passengers' luggage, the purport of such 
 regulations generally being, ' that the charge made for passen- 
 gers does not extend to luggage, and that the company will not 
 be answerable for luggage unless booked and paid for.' Such a 
 regulation may be reasonable where the practice of booking lug- 
 gage is really carried out and proper facilities are afforded to the 
 public for complying with it. Railway companies, like coach 
 proprietors or other carriers, may refuse to take charge of Jug- 
 gage unless booked or given over to their servants in con-
 
 Of a Railway Company viewed as Carriers. '3 2 7 
 
 however, the railway company take care to stipu- 
 late with all passengers going by their line that they 
 will not be responsible for the luggage of passen- 
 gers, except it is regularly booked and paid for. 
 The effect of this, it is conceived, where the requi- 
 sition is not complied with, is at any rate to exempt 
 them from all liability as common carriers, though 
 it may still leave them chargeable for any want of 
 ordinary care and precaution in their mode of deal- 
 
 formity with the general rules which they have found it necessary 
 to lay down for conducting their business. But the case is dif- 
 ferent, when, as frequently happens, the regulation respecting 
 booking is a dead letter, and the general practice is to take 
 charge of passengers' luggage without requiring it to be booked. 
 In this case the regulation in question is nothing but a notice, 
 the legal effect of which is very doubtful, and which, if the di- 
 rectors think it advisable to issue, they ought to issue us a notice 
 and not in the form of a regulation requiring the approval of the 
 Board of Trade." Report of Officers of Railway Department, 
 1842, p. xix. 
 
 The Carriers' Act distinctly provides that no general notice 
 shall limit the liability of common carriers with regard to ob- 
 jects other than those enumerated in the act, and the proper 
 rule appears to be, that although railway companies may refuse 
 to take charge of passengers' luggage, unless such reasonable re- 
 gulations as they have found it necessary to lay down are complied 
 with, yet that if they do actually lake charge of such luggage, 
 they incur the ordinary common law liability of carriers, subject 
 only to the limitations of the Carriers' Act. lb. 
 
 Unquestionably issued as a mere nntice, such a regulation could 
 not have any further effect in limiting the liability of the 
 company than what is ascribed to it in the above remark. But 
 semhle, where the company take care to embody it in the tickets 
 delivered to every passenger on taking his place, as part of the 
 terms on which they are willing to accept him, this would con- 
 stitute a special contract between the parties of the nature 
 stated in the text. See Palmer v. Grand Jiinction Railvcay 
 Company, 4 M. & W. 752.
 
 328 Of the User of the Railway. 
 
 incr with such luworage ; in other words, for gross 
 negbgence, and a fortiori for a wilful misfeasance. (6) 
 
 452. Again, the articles composing the luggage 
 may be of the kinds enumerated in the Carriers' Act, 
 and so the company may be entitled in regard of 
 them to the protection of such act, though this of 
 course they can claim only when a notice has been 
 duly affixed in their offices, &c., pursuant to the re- 
 quisitions of the act, 
 
 453. Lastly, the company may be entitled to a 
 protection more or less extensive in regard of the 
 luggage of passengers under the provisions of their 
 own act of incorporation ; as, for instance, where a 
 railway act provided that the company should not 
 be responsible for any thing taken with him by a 
 passenger, save articles of clothing of a given weight 
 and dimensions. Under a provision of the above 
 kind, the company are exempt from all liability in 
 respect of goods accompanying a passenger, not 
 being articles of clothing of the requisite weight and 
 dimensions, (c) that is to say, from all liability as 
 carriers ; for the clause cannot, it is conceived, be 
 construed into a licence to the company to divest 
 themselves of their character as carriers as to such 
 goods, and deal with them at their own free will and 
 pleasure. 
 
 454. The rights {d) of the company as passenger 
 
 (b) The company cannot, it is conceived, by such a contract, 
 be allowed to contravene any of the provisions of their act in 
 favour of the public. 
 
 (c) Elwell v. The Grand Junction Railway Company, 5 M.& 
 W.669. 
 
 (d) As to the right of detaining passengers practising frauds 
 
 \
 
 Of a Railway Company viewed as Carriers. 329 
 
 carriers. They have a right to demand and re- 
 ceive their fare at the time when the passenger en- 
 gages his seat; if he refuses to pay it, they are not 
 bound to carry him.(e) The company as passenger 
 carriers also have a lien on the baggage of the pas- 
 senger for his fare, but not on the person of the pas- 
 senger, or the clothes he has on. (y) 
 
 on the company under Railways Clauses Consolidation Act (8 
 Vict. c. 20), see act, ss. 103, 104, post, App. 
 
 (e) In order to secure the due payment of their fares, and to 
 guard against frauds as well on the part of the public as of their 
 own servants, railway companies have invariably found it indis- 
 pensable to adopt the ticket system, which requires fares in all 
 instances to be prepaid, and tickets given to the passengers, 
 which are considered as the sole vouchers for the payment oi 
 the fare, and are collected from the passengers before they leave 
 the trains or stations. Rep. Railw. Department, 1842, p. xvii, 
 
 (/) See Storey on Bailments, ss. 603. 604.
 
 ( S30 ) 
 
 CAP. VI. 
 
 Of certain general Statutory Provisions for the Regu- 
 lation, ^'c. of Railway Companies, whereby their 
 Porvers, Duties, Obligations, ^-c. are more or less 
 extensively modified, (a) 
 
 I — Of Powers of Supervision reserved to Board of Trade, 
 II. — Of Provisions for the Extension and Enlargement of the 
 Powers of Railway Companies. 
 III. — Of Regulations tonching matters of Police. 
 IV. — Of Provisions qualifying or extending the Duties, &c. of 
 
 Railway Companies. 
 V. — Of certain conditions annexed to future Grants of Powers 
 for making of Railways. 
 
 I. Of Powers of Supervision reserved to Board of 
 Trade over Railway Comjoaies. (6) 
 
 455. Inspection of Railways. The board of Trade, 
 in the first place, may appoint proper persons for the 
 inspection of railways, and also for the purpose of 
 
 (o) There are certain general provisions of the acts in ques- 
 tion relating more or less to all the above heads, that it may be 
 proper to notice in this place. As to the interpretation of acts, 
 see 3 & 4 Vict. c. 97, s. 21 ; 5 & 6 Vict. c. 55, s. 21 ; 7 & 8 
 Vict. c. 85, s. 25. See also as to recovery and application of 
 penalties, 5 & 6 Vict. c. 55, s. 22 ; 7 & 8 Viot. c. 85, s. 24. As 
 to taking away of certiorari, see 3 & 4 Vict. c. 97, s. 17. Also 
 as to the service of all communications to or from Board of 
 Trade, and the authentication of the Uitter, &c., see 3 & 4 Vict, 
 c. 97, s. 20 ; 5 & 6 Vict. c. 55, s. 19 ; 7 & 8 Vict, c 85, s. 23. 
 
 (6) As to power given to Board of Trade to certify for con- 
 struction of screens to roads under Railway Clauses Consolidation
 
 Powers of Supervision of Board of Trade. 331 
 
 enabling the Board to carry out the provisions of 
 any general act relating to railways, (c) Persons 
 appointed in the capacity of inspectors are autho- 
 rized at all reasonable times and upon producing 
 their authority, if required, to enter upon and exa- 
 mine the railway and the works, &c., belonging 
 thereto ; and wilfully to obstruct any such person 
 in the execution of his duty subjects the guilty party 
 to a penalty not exceeding 10/., which is recoverable 
 before a single justice, (c/) 
 
 456. Notice of Opening. Railways are not to be 
 opened without a twofold notice to the Board of 
 Trade, 1st, of the intended opening; and 2ndly, of 
 the time when the railway will, in the opinion of 
 the company, be sufficiently completed for the safe 
 conveyance of passengers, &c. (e) II a railway is 
 opened without notice, the company are liable to a 
 penalty of 20/. for every day that the railway con- 
 tinues open,(/) until the requisite notices have been 
 given and expired. Where, on inspection, the rail- 
 way is reported to be dangerous, the Board of Trade 
 are empowered to suspend the opening from time to 
 time ; if, in spite of the order of the Board to the 
 contrary, the company open the railway, they are 
 liable to a penalty of 20/. for every day that the 
 
 Act (8 Vict. c. 20), see act, s. 63, post, App. ; also as to 
 power given to Board of Trade under same act to modify con- 
 struction of public woiks of engineering nature, where strict com- 
 pliance with act impossible or inconvenient, see same act,s. 66, 
 post, App. 
 
 (c) 3 & 4 Vict. c. 97, s. 5 ; 7 & 8 Vict. c. 85, s. 15 ; App. 
 
 (d) 3 & 4 Vict. c. 97, ss. 5 and 6, App. 
 
 (e) 5 & 6 Viet. c. 55, s. 4, App. 
 (/) Ibid. s. 5, App.
 
 332 Regulation, S,c. of Railway Companies. 
 
 railway continues so open, {g) But the order of the 
 Board to be binding must be accompanied by a copy 
 of the report on which it is founded, (o-) 
 
 457. Returns, 8,-c. The Board of Trade may 
 order returns to be made by railway companies, ac- 
 cording to a form to be provided by the Board, of 
 the aggregate traffic on the line, as well as of all 
 accidents thereon attended with personal injury, 
 and also a table of their tolls, charges, &c. ; and in 
 case such returns are not made witJiin thirty days 
 after they are required, the company are liable to a 
 penalty of 20/. for every day that they wilfully 
 neglect to make the same, {li) Any officer of a 
 company wilfully making a false return is guilty of 
 a misdemeanour, (i) In case of accidents upon a 
 railway attended with serious personal injury to the 
 public using the same, a cumulative provision is 
 made, which requires notice of any such accident to 
 be given to the Board of Trade within forty-eight 
 hours after its occurrence. Any wilful omission on 
 the part of a company to give such notice subjects 
 them to a penalty of 20/. for every day that the 
 omission continues, {k) The Board of Trade are 
 further empowered to call for a return of serious 
 accidents occurring in the course of the public traffic 
 on the railway, whether attended with personal in- 
 jury or not, in such form, &c. as they may deem ne- 
 cessary to their information with a view to the public 
 safety ; and if such returns are not made within 
 fourteen days after they are required, the company 
 
 {g) 5 & 6 Vict. c. 55, s. 6, A pp. 
 (/i) 3 6c 4 Vict. c. 97, s. 3, App. 
 (i) Ibid. s. 4, App. 
 {]i) 5 & 6 Vict. c. 55, s. 7, App.
 
 Powers of Supervision of Board of Trade. 3S3 
 
 forfeit 51. for every day they neglect to make the 
 same. (/) Such returns, however, are made privi- 
 leged communications. (/) 
 
 458. Bye-laws. A further jurisdiction (??0 is 
 given to the Board of Trade in regard of any bye- 
 laws, &c., made by a company under the powers of 
 their act. No such bye-laws, 6ic. are valid until two 
 calendar months after a certified copy thereof has 
 been laid before the Board of Trade, unless before 
 that time they are approved of by the Board, (n) 
 The Board of Trade may disallow any bye-law, &c., 
 and if at the time of such disallowance it is already 
 in force, may further prescribe the time at which it 
 shall cease to be. (o) All provisions of railway 
 acts requiring the concurrence of courts of quarter 
 sessions, &c. to give validity to bye-laws, are re- 
 pealed, {p) 
 
 459. Disputes betrvecn connecting railways, S^c. 
 about the conduct of their joint traffic. Such disputes, 
 so far as they relate to the safety of the public, may, 
 upon the application of either party, be decided by 
 the Board of Trade, who may also determine about 
 the proportion of the expenses attending the neces- 
 sary arrangements to be borne by either party, (y) 
 
 (0 5 & 6 Vict. c. 55, s. 8, App. 
 
 (m) For an important instance of the good effect of the power 
 thus reserved to the Board of Trade, see Report of Officers of 
 Railway Department, 1842, p, xv. See also lb., 1843, App. p. 
 190. As to standard regulations proposed by Board of Trade in 
 pursuance of the authority given them by the above act, see ib. 
 1841, p. xvii. et seq. 
 
 («) 3 3>: 4 Vict. c. 97, s. 8, App. See 8 Vict. c. 20, s. 109. 
 
 (o) 3 & 4 Vict. c. 97, s. 9. 
 
 (/)) Ibid. s. 10, App. 
 
 (9) 5&; 6 Vict. c. 55, s. 11, App. Company neglecting, &c. 
 to obey order of board liable to a penalty of 20Z. per day. Ib.
 
 334 Regulation, S^'c. of Railway Companies. 
 
 4o0. Level crossings. So likewise, where a rail- 
 way company are willing to cajry any road, &c. over 
 or under the railway, instead of crossing the same 
 on a level, the Board may, on application of the 
 company, and after hearing the several parties in- 
 terested, if it shall appear to them that such level 
 crossing endangers the public safety, and that the 
 proposal of the company does not involve any vio- 
 lation of existing rights, &c., without adequate com- 
 pensation, authorize the company to remove the 
 danger at their own expense, by building a bridge, 
 or by such other arrangement as the nature of the 
 case shall require, subject to such conditions as the 
 Board shall direct, (r) And again they may, where 
 
 (r) 5 & 6 Vict. c. 55, s. 13, App. As to the meaning of 
 this clause, and as to the arrangements which the Board of Trade 
 will or will not sanction by virtue of it, see Report of Officers 
 of Railway Department, 1842, pp. xxi. xxii. 
 
 " An application was made to the Board of Trade by the 
 Croydon Company to sanction the diversion of a road, in order 
 to get rid of a level crossing over the railway at the Jolly Sailor 
 Station. Notice of this application having been given to the 
 board of surveyors of highways for the parish of Croydon, they 
 objected to the diversion ; and the inspector-general having re- 
 ported that the diversion being about a quarter of a mile would 
 be a serious inconvenience to the public travelling by the road, 
 and that there was no impediment beyond that of expense to 
 carrying the road under the railway in the present line, the 
 application was refused. With reference to the diversion of 
 roads to adjoining bridges in order to get rid of level crossings, 
 it was considered that although such a measure might under 
 certain circumstances come within the arrangements which by 
 the 13th section of the 5 & 6 Viet. c. 55, the Board of Trade 
 were empowered to direct, yet that the prima facie intention of 
 the clause being that the railway company should carry the road 
 over or under the raiUvay entirely at their own expense without
 
 Vowers of Supervision of Eoard of Trade, 335 
 
 they are satisfied that it will be more conducive to 
 the public safety, order the gates at level crossings 
 to be kept closed across the railway, instead of 
 across the road, as required by the 5 & 6 Vict. c. 55, 
 s. 9. («) 
 
 461. Branch Communications, {t) So likewise the 
 
 any violation of existing rights or interests, a diversion should 
 only be authorized where engineering difficulties prevented the 
 making of a bridge or tunnel in the present line of the road, or 
 where the parties interested in the road did not state any valid 
 objection. 
 
 Acting on these principles, a similar application from the 
 Manchester and Leeds Railway Company to be allowed to divert 
 a highway near their Brighouse Station to a bridge about 
 seventy yards distant was rejected, the diversion being opposed 
 by the trustees of the road, and the report of the inspector- 
 general being unfavourable. A subsequent application from the 
 London and Croydon Railyvay Company to be allowed to carrj' 
 the road from Dulwich to Bromley and Lewishara, which crossed 
 their line on a level at the Dartmouth Arms Station, under the 
 railway by a tunnel, making a moderate deviation, was acceded 
 to, and the requisite powers given in the terms of the act. the 
 inspector general having reported that it was impracticable to 
 carry the read over or under the railway in a direct line." 
 
 (s) 5 & 6 Vict. c. 55, s. 9, App. See 8 Vict c. 20, s. 47, 
 post, App. 
 
 (t) The following is an instance in which the Board of Trade 
 has been called upon to exercise the jurisdiction vested in it by 
 the 19th section of the act for regulating railways, of deter- 
 mining disputes relative to the opening of branch communications 
 with railways. It arose in consequence of a dispute between 
 the Great JVorth of England Railway and the proprietors of a 
 warehouse and brickyard adjacent to the line, who had enjoyed a 
 right of communication by means of a short branch line with the 
 main railway, which the extension of traffic consequent on 
 opening the line from York to Darlington had rendered highly
 
 336 Regulatio?!, SfC. of Railway Companies. 
 
 Board of Trade is authorized to determine all dis- 
 putes and disagreements touching the proper places 
 for openings in the ledges or flanches of railways, 
 in order to admit branch communications ; (w) and 
 the provisions in various railway acts, giving the 
 jurisdiction in such cases to tw^o justices, are re- 
 pealed, (a:) This latter branch of jurisdiction is 
 carried still further by the 5 & 6 Vict. c. 55, s. 12, 
 which empowers the Board of Trade, in the case of 
 any passenger railway, to order that all powers of 
 making branch lines opening into the flanches of 
 main lines, &c. given by any particular company's 
 act, shall only be exercised upon such conditions as 
 the Board shall direct, where, that is to say, it 
 appears to the Board that the powers in question 
 cannot be exercised without danger to the public, 
 iind that an arrangement can be made with a due 
 regard to existing rights of property, (i/) 
 
 46:^. Extension of Powers of Company. The 
 Board of Trade may likewise empower companies 
 to enter upon adjoining lands to repair or prevent 
 accidents, &.c.,{z) and in certain cases, and under 
 certain limitations, certify for the revival of a com- 
 
 dangerous. It will be seen from the report and correspondence 
 relative to the case, Appendix, p. 283, that an amicable arrange- 
 ment was effected through the intervention of this department, 
 by which the danger to the public was entirely obviated and the 
 rights of the parties preserved; Report of Officers of Railway 
 Department, 1842, p. xxi. 
 
 («) 3 & 4 Vict, c, 97, s. 19, App. 
 
 (i) Ibid. s. 18, App. 
 
 (i/) 5 & 6 Vict. c. 55, s. 12, App. For definition of pas- 
 senger railway, see ibid. 
 
 (s) 5 & 6 \ict. c. 55, s. 11, App.
 
 Powers of Supervision of Board of Trade. 337 
 
 pany's compulsory powers of purchasing and taking 
 land, (a) 
 
 462. Legal ^proceedings, (h) The Board of Trade 
 
 (a) 5 & 6 Vict. c. 55, s. 15, App, 
 
 (b) The Board of Trade has been called upon in several 
 cases to exert the powers vested in it by Lord Seymour's Act, in 
 order to prevent alleged deviations on the part of railway com- 
 panies from the provisions of their acts and of the general law, 
 but it has not been found necessary to institute any prosecution 
 for that purpose. 
 
 In April, 1841, an application was made to the railway de- 
 partment of the Board, to interfere for the purpose of preventing 
 the Glasgow and Greenock Railway Company from indirectly 
 becoming steam boat proprietors, for the purpose of forwarding 
 passengers by the railway to places beyond Greenock, and 
 acquiring a monopoly of the whole passenger traffic on the 
 Clyde. After a full consideration of the circumstances, it was 
 determined that this was not a case in which the Board of 
 Trade could interfere, on the following grounds, which may be 
 stated as illustrative of the principles upon which their lord- 
 ships have acted in the exercise of the power of instituting 
 prosecutions against railway companies, vested in them by Lord 
 Seymour's Act, &c., in cases where personal safety is not con- 
 cerned : 
 
 1st. That this power, being of an extraordinary nature, is only 
 to be exercised in cases where it is quite clear, 1st, that the con- 
 duct of the railway company is illegal ; 2nd, that it is contrary 
 to public policy and injurious to public interests. 
 
 2nd. That in the present case neither of these points was suf- 
 ficiently established, for although it is clearly illegal for a com- 
 pany incorporated for a specific purpose, such as making a rail- 
 way, to undertake a different and distinct branch of business, yet 
 in the present instance it might be fairly a question whether the 
 employing steam boats to forward passengers from the terminus 
 of the railway was not incidental to the main business and a 
 public convenience ; and at any rate it did not appear that 
 •whatever might be the ultimate object of the railway company 
 any loss was in the meantime sustained by the public, but rather 
 
 Q
 
 338 Regulations, SfC. of Railway Companies. 
 
 have a further jurisdiction to decide in certain cases 
 on the propriety of taking legal proceedings against 
 railway companies. Whenever it shall appear to 
 the Board that any of the provisions of the several 
 acts of parliament regulating any railway company, 
 or the provisions of any general act relating to rail- 
 ways, have not been complied with on the part of 
 any railway company or any of its officers, or that 
 any railway company has acted or is acting in a 
 manner unauthorized by the provisions of the act 
 or acts of parliament relating to such railway, or in 
 excess of the powers given and objects defined by 
 the said act or acts, and it shall also appear to the 
 
 that a certain class of passengers were conveyed part of the 
 distance at lower fares than had been charged before the opening 
 of the railway. 
 
 The next application was one complaining of the conduct of 
 the Clarence Railway Company, in having illegally laid down 
 a new branch across a public road under circumstances involving 
 great danger. The inspector-general was instructed to visit the 
 line, and from his report, which with the complainant's memorial 
 and other documents relative to the affair are given in the Ap- 
 pendix, p. 286, it appeared that the branch line complained of 
 was absolutely necessary, in order to conduct the traffic upon the 
 railway in safety, and that with certain precautions and alterations 
 pointed out in the report there was no reason to apprehend that 
 the public safety would be endangered. Under these circum- 
 stances it vv-as considered, that although the right of the railway 
 company to cross the highway might be doubtful, yet as the 
 measure was on the whole conducive to the public safety the 
 Board of Trade should not interfere, on condition of receiving 
 an assurance from the railway company that the various pre- 
 cautions specified in the inspector-general's report should be com- 
 plied with. This assurance was given and proper steps were to 
 be taken to ascertain that it was duly fulfilled. — Report of 
 Officers of Railway Department, 1842, p. xxi.
 
 Powers of Supervision of Board of Trade. 33d 
 
 Board that it would be for the public advantage that 
 the company should be restrained from so acting, 
 the Board are to certify the same to the proper law- 
 officer of the crown, who shall thereupon proceed 
 against the company according to the circumstances 
 of the case, viz. by information, action, &c. for 
 penalties, &c. in cases of mere nonfeasance, or in 
 cases of acts of commission by suit in equity, &c. 
 for an injunction, &c. (c) No such certificate is to 
 be given, until twenty^one days after notice to the 
 company of the intention to give the same ; and no 
 legal proceedings are to be taken under the authority 
 of the Board, except upon such certificate, and within 
 one year after the commission of the offence, (d) 
 
 II. Provisions for the Enlargement of Powers of 
 Railway Companies. 
 
 463. The Board of Trade may empower any 
 railway company, in case of any accident or slip 
 happening or being apprehended to any cutting, em- 
 bankment or other work belonging to them, to enter 
 upon any lands adjoining their railway for the pur- 
 pose of repairing or preventing such accident, and 
 to do such works as may be necessary for the pur- 
 pose. In cases of necessity, the company may 
 enter, &c., without having obtained the previous 
 sanction of the Board. In every such case, how- 
 ever, the company must, within forty-eight hours 
 after such entry, report the particulars to the Board; 
 and such powers determine, if the Board, after con- 
 sidering the report, certify that their exercise is not 
 
 (c) 7 & 8 Vict. c. 85, s. 17, App. 
 
 (d) Ibid.s. 18, App. 
 
 Q 2
 
 ^40 Regulations, ^c. of Railway Companies. 
 
 necessary for the public safety. The works are to 
 be as little injurious to the adjoining lands as the 
 nature of the case admits, and are to be executed 
 with all possible dispatch ; and full compensation is 
 to be made to owners and occupiers, the amount in 
 case of dispute to be determined in the manner pre- 
 scribed by the company's act for settling cases of 
 disputed compensation generally, (e) 
 
 464. After the expiration of the company's com- 
 pulsory powers, it is sometimes found necessary for 
 the public safety that additional land should be 
 taken for the purpose of giving increased width to 
 the embankments and inclination to the slopes of 
 railways, or for making approaches to bridges or 
 archways, or for doing such works for the repair or 
 prevention of accidents as hereinbefore described. 
 Where the Board of Trade certify that this is the 
 case, the company's compulsory powers of taking 
 land, &c., as regards the land mentioned in the cer- 
 tificate, revive for the further period mentioned in 
 such certificate. Before applying, however, for such 
 certificate, fourteen days' notice in writing must be 
 given by the company in the manner prescribed by 
 their act for serving notices on land owners, to the 
 
 (e) 5 & 6 Vict. c. 55, s. 14, App. "Where a slip took place 
 on the line of railway, and the company thereupon entered 
 upon the adjoining land and began digging without permission, 
 and without subsequently reporting the same to the Board of 
 Trade, this was ruled not to be within the above section ; but it 
 being proved by affidavit that the steps taken by the company 
 were necessary for the public safety, and there having been a 
 subsequent treating between the parties, an injunction was re- 
 fused, but the company with the consent of their counsel was 
 ordered to pay into court a certain sum of money ; Touer v. 
 Eastern Counties Railway Company, 3 Railw. Cas. 381.
 
 Enlargement of Powers of a Railway Company. 341 
 
 parties interested in the land, or such of them as 
 are known to the company, and any of those par- 
 ties, if they apply within that time, are to be heard 
 by the Board before granting the certificate ; and if 
 the application is refused, the directors may be re- 
 quired by the Board to pay the expenses incurred 
 in resisting the application, (f) 
 
 (/) 5 & 6 Vict. c. 55, s. 15, App. The passing of the 
 act, 5 & 6 Vict. c. 55, for the better regulation of railways, has 
 led to several applications from railway companies for powers to 
 take land required for purposes of public safety. The first and 
 most important of these applications was from the London and 
 Croydon Railway Company, who memorialized the Board to 
 grant a certificate reviving their compulsory powers of purchasing 
 several parcels of land, amounting in the whole to fifty-four 
 acres, two roods and twenty perches, for the purpose of widening 
 the cutting at Nevr Cross and Forest Hill, where so many slips 
 had taken place. Objections to this application having been 
 lodged on the part of the Earl of St. Germans and other pro- 
 prietors of the land in question, the representatives of the railway 
 company and of the objecting parties were heard before the vice- 
 president of the Board of Trade ; but as the inspector-general 
 reported his decided opinion that the whole of the land was re- 
 quired for purposes connected with the public safety, and conces- 
 sions were made on the part of the company which satisfied the 
 principal parties, the objections were not insisted upon, and a 
 certificate was given, by which the compulsory powers of pur- 
 chasing contained in the Croydon Company's Acts were, as re- 
 garded the portions of land in question, I'evived for a period of 
 twelve months. In the course of the discussion a question was 
 raised, whether land required for the purpose of throwing to 
 spoil the earth cut away in the process of widening slopes came 
 within the meaning of the fifteenth clause of the 5 & 6 Vict, 
 c. 55 ; but as it appeared from the report of the inspector-general 
 that the creation of a spoil bank in the vicinity of the cutting 
 was in the case in question essential for the public safety, and in 
 fact part and parcel of the integral process of widening the
 
 342 Regulations, ^-c. of Railway Compatiies. 
 
 465. The act further provides, that carriages of 
 greater weight than four tons may be used on rail- 
 ways, and repeals the provisions of the various rail- 
 way acts limiting the weight to four tons, (o-) 
 
 III. Regulations of Police, 
 
 460. It is proposed, in the next place, to notice 
 the provisions made by the legislature for the punish- 
 ment of offences committed on the railway and works 
 connected therewith, and calculated to compromise 
 the safety of the traffic on the line of railway, or 
 otherwise to interfere with the due conduct of the 
 company's business, (h) There are two cases here 
 provided for: 1st, offences committed by persons 
 employed upon the railway ; and 2ndly, those com- 
 mitted by persons in general. 
 
 467. 1st. Any officer or agent of any railway 
 company, or any special constable duly appointed, 
 and all such persons as they may call to their assist- 
 
 slope, it was considered that the clause fully warranted the ex- 
 tension of the certificate to all the land required. 
 
 In two other cases certificates were given for small portions 
 of land to the Croydon and Brighton Companies, no parties 
 having appeared to state objections, and the inspector- general 
 having reported that the land was required for the purpose of 
 insuring the public safety. See Report of Officers of Railway 
 Department, 1842, p. xxi.; see further as to same point, Report 
 of Officers of Railway Department, 1843, App. p. 167, 172. 
 
 (g) 5 & 6 Vict. c. 55, s. 16, App. 
 
 (ft) As to penalty for obstructing parties engaged in setting 
 out line of railway, under Railway Clauses Consolidation Act, 
 (8 Vict. c. 20,) see act, s. 24, post, App. Also as to penally 
 on passengers practising frauds on companies, and power of 
 detaining offenders, given in such case to company under same 
 act, see ib. ss. 103, 104.
 
 Regulations of Police. 343 
 
 ance, may seize and detain any engine driver, guard, 
 porter or other servant in the employ of such com- 
 pany who shall be found drunk wliile employed upon 
 the railway, or commit any offence against any of the 
 bye-laws, rules or regulations of such company, or 
 shall wilfully, maliciously or negligently do or omit 
 to do any act whereby the life or limb of any person 
 passing along or being upon the railway belonging 
 to such company, or the works thereof respectively, 
 shall be or might be injured or endangered, or 
 whereby the passage of the engines, carriages or 
 trains shall be or might be obstructed or impeded, 
 and convey the party so offending, or any person 
 counselling, aiding or assisting in such offence, with 
 all convenient dispatch, before some justice of the 
 peace for the place, &c. If convicled, the offender 
 may be imprisoned, with or without hard labour, for 
 a period not exceeding two months, or fined a sum 
 not exceeding 10/., and in default of payment, may 
 be imprisoned for the above period or until he pays 
 the fine. (?) 
 
 The justice, instead of deciding summarily, may 
 send the case to the quarter sessions, and in the 
 meantime either commit the party to prison or take 
 bail for his appearance, with or without sureties ; if 
 convicted at the quarter sessions, he may be impri- 
 soned, with or without hard labour, for any period 
 not exceeding two years, (k) 
 
 The above provision for the punishment of the 
 servants of railway companies is now extended and 
 made to embrace, not merely servants, &c. of the 
 company, but likewise all persons employed either 
 
 (i) 3 & 4 Vict. c. 97, s. 13, App. 
 (/<) Ibid. s. 14, App.
 
 344 Regulations, Sfc. of Railway Companies. 
 
 by the company or any other person, &c. in con- 
 ducting traffic upon the railway, or in repairing and 
 maintaining the works of the railway. (/) 
 
 468. In case of offences committed in Scotland, 
 the sheriff, or other magistrate acting for the dis- 
 trict within which such offence shall be committed, 
 or where such offender shall be apprehended, is to 
 have the like jurisdiction as the justice of the peace 
 in England, (m) 
 
 469. 2ndly. Of offences committed by persons 
 ia general to tlie obstruction of the traffic on the 
 railway, trespasses, &c. Every person who shall 
 wilfully (n) do or cause to be done any thing in 
 such manner as to obstruct any engine or carriage 
 using any railway, or to endanger the safety of per- 
 sons conveyed in or upon the same, or shall aid or 
 assist therein, is guilty of a misdemeanour, and 
 being convicted thereof may be imprisoned, with 
 or without hard labour, for any term not exceeding 
 two years. 
 
 And any person who wilfully obstructs, &c. any 
 officer, &c. of the company in the execution of liis 
 duty upon the railway, &c. or who wilfully tres- 
 passes (o) upon the railway, &c., and refuses to 
 
 (0 5 it 6 Vict. c. 55, s. 17, App. 
 
 (to) Ibid. s. 18, App. 
 
 (n) 3 & 4 Vict. c. 97, s. 15, App. A party is liable to 
 be indicted under this clause if he intentionally places on a rail- 
 way substances having a tendency to produce an obstruction of 
 the carriages, (knowing them to be such,) though he may not 
 have done the act expressly with that object ; Reg. v. Holroyd, 
 2 M. & Rob. 339. 
 
 (o) A party is a wilful trespasser within the meaning of this 
 clause, and therefore liable to be apprehended and carried before 
 a magistrate. Sec, who goes across the railway from one part of 
 
 I
 
 Regulations of Police. 345 
 
 depart upon being requested so to do by any officer, 
 &c. of the company, as also any one aiding, &c. 
 therein, may be apprehended and taken before a 
 justice of the peace, &c. and fined any sum not 
 exceeding five pounds, and in default of payment 
 may be committed for any term not exceeding two 
 calendar months, or until he pays the fine, (j:)) 
 
 IV. Provisions qualifying or extending the Duties, 8^'C. 
 of Railway Companies. 
 
 It is proposed in the next place to show in what 
 respects the duties, &c. obligatory on railway com- 
 panies are varied or enlarged by the provisions of 
 any general railway act. 
 
 470. In the first place, they are to give certain 
 notices of the intended opening of their line, &c. and 
 to make certain returns of the traffic on their line, 
 accidents, &c. to the Board of Trade. {c[) 
 
 Gates at any level crossing over a road are to be 
 kept closed across the road, instead of across the 
 railway, unless where the Board of Trade direct 
 otherwise, which they are empowered to do where 
 they are satisfied that it will be more conducive to 
 the public safety. (»•) 
 
 Railway companies are to erect, maintain and 
 
 his land to another, after his right of doing so is taken away by 
 an arrangement with the company made on the footing of there 
 being a total separation of his land ; Manning v. Eastern Counties 
 Railway Companii, 12 iM. & W. '237. 
 
 (p) 3 & 4 Vict. c. 97, s. 16, App. Sec 5 & 6 Vict. c. 55, 
 s. 18, App. 
 
 (9) See ante, p. 331, et seq. 
 
 (1) 5 & 6 Vict. c. 55, s. 9, App. See 8 Vict. c. 20, s. 47, 
 post, App. 
 
 Q O
 
 346 Regulations, <§'c. of Railway Companies. 
 
 repair good and sufficient fences throughout the 
 whole of their respective lines, just the same as if 
 directed so to do by an order of justices made under 
 the authority of their respective acts. (5) They are 
 likewise to permit military and police forces, &c. 
 with their baggage, &c. (t) to be conveyed at the 
 usual hours of starting, at such prices or upon such 
 conditions as may from time to time be contracted 
 for between the Secretary at War and such railway 
 companies for the conveyance of such forces, on the 
 production of a route or order for their conveyance 
 signed by the proper authorities. They are likewise 
 to afford certain facilities for the transmission of the 
 mails, (h) and to allow lines of electrical telegraph 
 to be established, (x) Lines established by private 
 parties, &c., it may be remarked, are to be open to 
 the public, (tj) 
 
 471. Companies incorporated by any act of the 
 session q/'!844, or any subsequent session, or which 
 thereby have obtained or shall obtain any extension 
 or amendment of their powers, or have been or shall 
 be authorized to do any act unauthorized by the 
 provisions of their previous acts, are subject to still 
 more stringent obligations. They are to convey 
 military and police forces, S;c. with their baggage, 
 stores, &c., at certain rates and upon certain con- 
 ditions specified by the legislature, (z) 
 
 (s) 5 & 6 Vict. c. 55, s. 10, App. See also 8 Vict. c. 20^ 
 s. 68, et seq. post, App. 
 
 (0 5 & 6 Vict. c. 55, s. 20, App. 
 
 («) 7 & 8 Vict. c. 85, s. 11, App. j 1 & 2 Vict. c. 98. 
 
 (j.) 7 & 8 Vict. c. 85. s. 13, App. 
 
 (y) Ibid. s. 14, App. 
 
 (z) Ibid. c. 85, s. 12, App.
 
 Provisions extending Duties of Railway Companies. 347 
 
 472. ^11 passenger railway companies so incor- 
 porated, &c. are to provide one cheap train each way 
 daily, subject to the conditions prescribed by the 
 legislature, (a) and are liable to a penalty for non- 
 compliance. 
 
 The Board of Trade have a discretionary power of 
 allowing alternative arrangements in regard of such 
 cheap trains, except as to the amount of fare, and in 
 case the company conform to these, they are not 
 liable to the above penalty. (6) Where companies, 
 subject to the above obligation, run trains on Sun- 
 days, they must likewise provide suflicient carriages 
 for the conveyance of third-class passengers by such 
 train each way as stops at the greatest number of 
 stations, and this at all the stations, both terminal 
 and other, at which such Sunday train may ordinarily 
 stop, the fare not to exceed one penny per mile, (c) 
 
 V. Of the Conditions attached to future Grants of 
 Parliamentary Powers for the making of Railways, 
 
 473. Passenger railways, authorized by an act of 
 the session of 1844, or any subsequent session of 
 parliament, are subjected to certain conditions for 
 the benefit of the public. If at any time after the 
 expiration of twenty-one years from the 1st of 
 January next after the passing of their act, the 
 company's profits, upon an average of the three 
 then last preceding years, equal or exceed ten per 
 cent., the Lords of the Treasury may, subject to 
 certain provisions made by the legislature in that 
 
 (a) 7 & 8 Vict. c. 85, s. 6, App. As to penalty for non- 
 compliance, see ib. s. 7, App. 
 (6) Ibid. s. 8, App. 
 (c) Ibid. s. 10, App.
 
 348 Regulations, Sj-c. of Railway Companies. 
 
 behalf, revise the scale of the company's charges, 
 and fix a new scale ; or, whatever be the rate of 
 profit, may, at the like period, and subject to the 
 provisions prescribed in that behalf, purchase the 
 railway and its appurtenances on behalf of the 
 crown, {d) Such option of revision or purchase is 
 not, however, to apply to railways authorized by the 
 legislature previously to the session of 1844 ; neither 
 is any branch, S;c. of less than five miles in length 
 to be deemed a new railway within the provisions 
 of the act giving such option ; nor is the option of 
 purchase to be exercised as regards any branch, &c. 
 without including the principal railway in the pur- 
 chase, if the company so require, (e) 
 
 To render the above option available, the com- 
 pany are to keep accounts of their receipts and pay- 
 ments during the last three years; and sucl) accounts 
 are to be open to inspection. (/) 
 
 • (d) 7 & 8 Vict. c. 85, ss. 1, 2, 4, App. 
 (e) Ibid. s. 3, App. 
 (/) Ibid. s. 5, App.
 
 ( 349 ) 
 
 CAP. VII. 
 
 Of Remedies. 
 
 Part I. — Of Remedies for or against Eailway Companies. 
 II. — Of Remedies between Individual Shareholders. 
 
 PART I. 
 
 Of Remedies for or against Railway Companies. 
 
 Sect. I. — Of Remedies for Railway Companies against Share- 
 holders. 
 II. — Of Remedies for Railway Companies against Strangers. 
 III. — Of Remedies for Shareholders against Company. 
 IV. — Of Remedies for Strangers against Company. 
 
 Sect. I. — Of Remedies for Company against 
 Shareholders, (a) 
 
 I.— At Law. 
 II. — In Equity. 
 
 474. I. At law. The main duty which a railway 
 act imposes on the individual members of the com- 
 pany is that of paying the amount of their respective 
 subscriptions in such parts and proportions, and at 
 such times, as they are called on to do by the com- 
 pany under the provisions of their act. The reme- 
 dies, (bi) therefore, to which the company is entitled 
 
 (a) As to service of notices on shareholders under Companies 
 Clauses Consolidation Act (8 Vict. c. 16), see act, s. 136, post, 
 App. 
 
 (6) As to remedy for company against directors, see Imperial 
 Gas Company v. Clarke, 7 Bing. 95.
 
 350 Remedies for or against Railway Companies. 
 
 at law against its members are in general confined to 
 the particular instance of a nonpayment o{ calls. 
 
 475. If an Irish company, whose concerns are all 
 carried on in Ireland, bring an action for calls in 
 England, they may be compelled to give security for 
 costs, and this, notwithstanding they have money in 
 a banker's hands in London, and many of the mem- 
 bers reside in England, (c) And the same rule ap- 
 plies to a Scotch Company, though possessed of 
 money and exchequer bills in their banker's hands 
 in London, {d) 
 
 476. Declaration, (e) The act incorporating the 
 company usually gives a concise form of declara- 
 tion (/) in actions for calls. Although the declara- 
 tion does not follow the form given by the act, yet, if 
 it disclose a possible state of things under which the 
 defendant might be liable by virtue of the act of 
 parliament, or if it contain what is tantamount to 
 an ordinary indebitatus count, it may still be sup- 
 ported, at any rate upon general demurrer ; {g) as, 
 for instance, where the declaration stated that the 
 defendant, before the commencement of the suit, 
 being a proprietor of divers shares, before and at the 
 
 (c) Limerick and Waterford Railway Company v. Fraser, 4 
 Bing. 394. 
 
 (d) Edinburgh and Leilh Railway Company v. Dawson, 3 
 Jar. 55. 
 
 (e) As to when necessary to bring action within particular 
 jurisdiction, see post, p. 356, and Diindalk Western Railway 
 Company v. Tapster, 1 A. & E. N. S. 667 ; S.C.2 Railw. Cas. 
 586. 
 
 (/) See Companies Clauses Consolidation Act (8 Vict, 
 c. 16), sect. 26, post, App. 
 
 (g) The Aylesbury Railway Company v. Mount, 4 M. & Gr. 
 651.
 
 Remedies for Compaiiy against Shareholders. 351 
 
 commencement of the suit, was and still is indebted 
 in, &c., whereby and by reason of the same being 
 unpaid, the defendant still is indebted, &c. 
 
 477. Where the declaration charges a party as 
 subscriber, it need not disclose an obligation by 
 deed, unless indeed the act requires such a mode of 
 obligation as indispensable to constitute a subscriber. 
 The subscription deed, at any rate, it can in no case 
 be necessary to declare upon specially and directly, 
 inasmuch as being executed before the passing of 
 the act, and consequently before the existence and 
 formation of the company, the company can be no 
 party to it. (A) Even assuming, however, a subscrip- 
 tion by deed to be necessary to support an action 
 against a party "as subscriber," and that in strict- 
 ness it ought to be alleged, yet the omission is cured 
 by verdict, {h) 
 
 478. Where the statute gives a right to recover 
 what is due for calls including interest, it is not 
 necessary to insert in the declaration a count for 
 interest, nor ought the amount of the interest to be 
 added by the plaintiffs to the calls, but it may be 
 recovered as damages for the detention of the 
 debt, {i) 
 
 479. If the declaration states the appearance of 
 the company by attorney, and the defendant pleads 
 
 (/i) The Great Korth of England Railway Company v. Bid- 
 dulph, 2 Railw. Cas. 420 ; S. C. 7 M. & W. 243. 
 
 (i) Southampton Dock Company v. Richards, 2 Railw. Cas. 
 215; S. C. 1 M.& Gr. 448 ; see also London and Brighton 
 Railway Company v. Fairclottgh, 2 M. & Gr. 690. But if in 
 such case defendant suffer judgment by default, a rule to com- 
 pute cannot be had, but there must be a writ of inquiry; Chel- 
 tenham and Great Western Union Railwav Company v. Fry, 7 
 Dowl. P. C. 616.
 
 352 Remedies for or against Railway Companies. 
 
 over, the appointment of the attorney may be pre- 
 sumed to be under the seal of the company, (k) 
 
 480. Next, of the grounds of defence to an action 
 for calls, &c. A shareholder, when sued for calls, 
 will not be allowed to plead matter which is either 
 not essential to the justice of his case, or contrary to 
 the policy and provisions of the company's act of 
 incorporation. In general, a railway act expressly 
 provides (I) what proof the company must adduce to 
 entitle themselves to recover in an action for calls, 
 viz. proof of the call being in fact made, of the 
 defendant's being a proprietor, and of notice being 
 given pursuant to the act. Those three facts exist- 
 ing, the defendant is prima facie liable, and can only 
 defend himself by denying those facts, or by show- 
 ing matter subsequent which goes to avoid their 
 effect, such as payment, release, or a forfeiture of 
 the defendant's share declared by the directors, (to) 
 and confirmed and adopted by the company pursuant 
 to the provisions of their act, &c. A defendant, 
 therefore, cannot be allowed, under an act containing 
 the above provisions touching the measure of proof, 
 to question in an action for calls the constitution of 
 the company, the appointment of the directors, the 
 propriety of the measures of the company generally, 
 or of the purpose in particular for which the calls 
 forming the subject of the action are made, and the 
 
 (k) Thames Haven Railway Company v. Hall, 5 M. & Gr. 
 274. 
 
 (/.) As to provisions of Companies Clauses Consolidation Act 
 (8 Vict. c. 16), on this head, see act, s. 27, post, App. • 
 
 (m) Per Alderson, B., in Edinburgh, Leith and Xewhaven 
 Raitway Company v. Hebblewhite, 2 Railw. Cas. 246 ; S. C. 6 
 M. & W. 707.
 
 Remedies for Comjmny against Shareholders. 353 
 
 like ; (n) for, if such pleas were not excluded, there 
 would be so many impediments in the way of making 
 calls, that no such undertaking could be carried 
 effectually into execution, (o) The court accord- 
 ingly has refused defendants, in an action for calls, 
 leave to plead the following pleas: 1. That there 
 were not a competent number of directors who had 
 paid their calls present when the calls were made ; 
 2. That the calls were made for purposes not autho- 
 rized by the act ; 3. That they were not made upon 
 all the subscribers and proprietors ; 4, nor by com- 
 petent persons, and for the sole purpose of the 
 undertaking, (p) 
 
 481. Next, of the mode of pleading the above 
 defences ; a defendant, we have seen in an action for 
 
 (n) Although, by the provisions of the company's act, a de- 
 fendant may be precluded from raising any question on the 
 record as to the appointment of the directors, &c., that is no 
 reason for his being allowed to do so by way of summary appli- 
 cation to the court ; Thames Haven Railway Companii v. Hall, 
 5 M. & Gr. 274. At any rate, application too late, if made after 
 cause set down for trial, and made a remanet, or semble, after 
 judgment by default ; Thames Haven Dock Company v. Rose, 4 
 M. & Gr. 559. So, after a cause has been set down for trial 
 and made a remanet, an application to set aside the proceedings 
 upon the ground of the company being virtually extinct, and of 
 the parties who brought the action having no authority to do so, 
 has been held too late, it appearing that the defendant had 
 known all the facts for a long time ; Thames Haven Dock and 
 Railway Company v. Hall, ubi supra. 
 
 (o) London and Brighton Railway Company v. Wilson, Same 
 V. Faircloiigh, 6 Bing. N. C. 135; The South-Eastern Raihvay 
 Company v. Hebblewhite, 2 llailw. Cas. 247 ; S. C. 12 A. & E. 
 497. 
 
 (p) South-Eastern Railway Company v. Hebblewhite, ubi 
 5upra.
 
 354; Remedies for or against Railway Companies. 
 
 calls, may either deny those facts which are made 
 by the act essential to the validity of a call, or he 
 may plead matter subsequent, by which the effect of 
 those facts is done away with. Where a defendant 
 intends to rely on the former ground of defence, it 
 would seem sufficient for him simply to plead never 
 indebted, because that plea puts the plaintiffs to 
 prove a performance of the conditions precedent as 
 to notice, &:c. which the act imposes on them.(5') 
 Special pleas, therefore, denying the making of the 
 call, the giving of notice, &c. would seem to be un- 
 necessary and even to be open to objection as 
 amounting to the general issue. Indeed, as a general 
 rule, leave would not be granted to plead such pleas 
 together with the general issue. (»•) 
 
 In addition, however, to the plea of the general 
 issue, it is not unusual for a defendant, who relies 
 on the above ground of defence, to traverse specially 
 the fact of his proprietorship, and this it seems it is 
 allowable for him to do. (r) 
 
 4S2. Although, in general, a part}- cannot plead 
 the plea of the general issue and pleas denying the 
 notice, Sec. together, still the court will permit him, 
 if he please, to plead the latter in preference to the 
 former, in which case such pleas ought to conclude 
 to the country, and not with a verification ; for 
 although a declaration in the ordinary statutory 
 form, taken by itself, alleges nothing except the facts 
 
 ((j) London and Brighton Railway Company \. Wilson; Same 
 V. Faircloiigh, ubi supra ; Edinburgh, Leith and Newhaven Rail- 
 way Company v. Hehblewhite, ubi supra. 
 
 (r) See South Easter7i Raibvay Company v. Hehhlewhite, ubi 
 supra ; London and Brighton Railway Company v. WilsoTi ; 
 Same v. Fairclongli, ubi supra.
 
 Remedies for Comixmy against Shareholders. 355 
 
 of the proprietorship and of the defendant's being 
 indebted for calls, still construed with reference to 
 the statute (which is necessary in order to make it 
 good), such a declaration must be taken impliedly 
 to include the averment of the making of the calls 
 and the giving of the requisite notice, being facts 
 necessary to be proved by the plaintiffs, to entitle 
 them to recover, (s) 
 
 483. Upon a like ground as pleas denying notice 
 of the calls, &c. are objectionable, is a plea setting 
 up a transfer and the due registry thereof under the 
 act ; such a plea goes upon this ground, that before 
 the defendant's liability to pay arose, an event oc- 
 curred, viz. the transfer and the registry, whereby 
 he never became indebted ; it amounts in short to 
 the general issue, (t) 
 
 484. Of defences grounded on matter subsequent. 
 Forfeiture is a good defence to an action for calls ; 
 for the company cannot both forfeit a party's shares 
 and proceed against him by action. To constitute 
 an effective forfeiture, however, there must, accord- 
 ing to the usual provisions of a railway act, not only 
 be a declaration of forfeiture by the directors, but 
 such declaration must have been confirmed at some 
 general or special meeting of the company within a 
 given time of the directors making their option, (m) 
 This should therefore be averred in the plea ; (u) 
 
 (s) Judgment of Lord Abinger, C. B., in Edinburgh, Leith 
 and Newhaven Ruiluay Company v. Hebblewhite, ubi supra. 
 
 (t) The Aylesbury Railway Cumpany v. Mount, 4 M. & Gr. 
 668. 
 
 (m) The Edinburgh, Leith and Newhaven Railway Company 
 V. Hebblewhite, 2 Railw. Cas. 237 ; S.C.6 M. & W. 707 ; see 
 also Birmingham, Bristol and Thames Junction Railway Com- 
 pany V. Locke, 1 A. & E. N. S. 256.
 
 356 Remedies for or against Railway Comjjanies. 
 
 though the plea, it seems, is pleadable (that is to say, 
 a court will allow it to be pleaded,) without any aver- 
 ment of the declaration of the directors as to the 
 forfeiture having been ratified by the company, (x) 
 
 485. As in the case of calls, the statute creates 
 both the right and the remedy, the remedy given 
 by the statute must be strictly pursued. Suppose, 
 therefore, the right to sue is limited to a particular 
 jurisdiction, if the action be brought out of that 
 jurisdiction, that would be matter for a plea in 
 bar. {y) Although such a plea be pleaded in the 
 form of a plea to the jurisdiction, yet, as it discloses 
 matter in bar of the action, a defendant on demurrer 
 thereto may take objections to the declaration, {y) 
 
 486. As to how far several pleas (z) may be 
 pleaded in actions for calls. Tlie court, in the ex- 
 ercise of its discretion under the statute of Anne, 
 will not allow a plea of the general issue and pleas 
 amounting thereto to be pleaded together ; neither 
 will it allow of different pleas being put on the record 
 which are contrary to the express provisions or to 
 the policy of the act, and are not essential to the 
 justice of the case, (a) 
 
 487. Where a judge's order or rule of court has 
 been obtained for the pleading several matters, a 
 plaintiff", who wishes to get rid of any of those pleas, 
 
 (x) The Eastern Counties Railway Company v. Cooke, 2Rail\v. 
 Cas. 250 ; S. C. nom. Eastern Counties Eailway Company v. 
 Cooper, 19 Law Journ. Q. B. 8 ; the Same v. Fairchugh, ibid. 
 
 (y) Dundalk Western Railway Company v. Tapster, 2 Railw. 
 Cas. 536 ; S. C. 1 A. & E. N. S. 667. 
 
 (z) As to wiien leave refused to add plea, see Thames Haven 
 Dock and Railway Company v. Hall, 5 M. 6t Gr. 274. 
 
 (tt) See ante, p. 352, 353.
 
 Remedies for Company against Shareholders. 357 
 
 should move to rescind the order or rule ; (6) and on 
 the motion for that purpose, he must take care to 
 inform the court what the declaration is, as other- 
 wise they cannot decide as to the pleadings arising 
 on it, and the motion consequently must be dis- 
 charged. And the court in such a case will not 
 allow an amendment, (b) 
 
 488. Where the company rely on the defendant's 
 own acts, &c. as precluding him from disputing the 
 fact of his proprietorship, they need not reply spe- 
 cially the estoppel, it being mere matter of estoppel 
 in pais, (c) 
 
 489. Next, as to questions of evidence. The 
 nature of the evidence that it may be necessary for 
 a railway company in any given case to adduce, 
 must of course depend on the issues raised by the 
 pleadings. There are, however,' one or two points 
 usually put in issue in actions for calls, and for the 
 proof of which particular provision is made by the 
 company's act ; such are the facts of the defendant's 
 proprietorship and of the making of the calls. 
 
 1st. As to the former. Where the defendant's pro- 
 prietorship is put in issue, the usual proof (rf) of this 
 fact is the company's register book, which the act 
 constitutes primd facie evidence for the purpose. 
 To make the register book evidence, it is not neces- 
 
 (6) South Eastern Railway Company v. Sprott, 8 Dowl. 493 ; 
 S. C. 11 A. &E. 167. 
 
 (c) Cheltenham and Great Western Railway Company v. 
 Daniel, 2 Railw. Cas. 728 , S. C.6 Jut. 577. 
 
 (d) See Companies Clauses Consolidation Act, (8 Vict. c. 
 16,) s. 28, post, App. See also 8 & 9 Vict. c. 113, act passed to 
 facilitate the admission in evidence of certain official and other 
 documents, post, App.
 
 358 Remedies for or against Railway Companies. 
 
 sary that it should be kept in strict conformity with 
 the act, the provisions as to the details to be in- 
 cluded in such book being to a great extent merely 
 directory ; but it is enough if it be kept bond fide 
 with the intention of doing what the act directs, and 
 in essentials comply with its directions, {d) Where 
 therefore an act directed a company to enter and 
 keep in their register book the names and additions 
 of the shareholders, with the number of shares they 
 were respectively entitled to, and the amount of sub- 
 scriptions paid thereon, and the proper number by 
 which each share was distinguished, and after such 
 entry to cause their common seal to be annexed 
 thereto ; and in an action for calls a book kept by the 
 company was produced, (e) containing the names and 
 additions of all the persons whom they supposed en- 
 titled to shares, together with the number of those 
 shares (though not, in all cases, the amount of sub- 
 scriptions paid thereon), and the proper number by 
 which each share was distinguished, and sealed from 
 time to time with the common seal of the company, 
 it was held to be a book substantially kept in com- 
 pliance with the act and admissible in evidence, 
 though it contained entries to whicli no seal had 
 ever been affixed, and the names of persons not enti- 
 tled to shares, and omitted the names of others who 
 were, 
 
 (d) Southampton Dock Company v. Richards, 1 M. & Gr. 
 448 ; The London Grand Junction Railway Company v. Free- 
 man, 2 Railw. Cas. 468 ; S. C. 2 M. & Gr. 606 ; Same v. 
 Graham, 1 A. & E. N. S, 271 ; Same v. Gun stone, ibid.; JBiV- 
 ■mingham, Bristol and Thames Junction Railway Company v. 
 Locke, 1 A. & E. N. S. 256. 
 
 (e) London Grand Junction Railway Company v. Freeman, 
 ubi supra.
 
 Remedies for Company against Shareholders. 359 
 
 Where, in addition to other requisites, the act 
 prescribes that the book in question be kept by the 
 secretary of the company, it is not meant by this 
 that he is to make every entry in it, but simply that 
 it should be under his care and control. It has been 
 held enough, therefore, to show that the book was 
 kept by a clerk, who acted under the secretary and 
 made entries according to his directions, (y) 
 
 490. In addition to the register book, which is to 
 contain the names and additions of the shareholders, 
 the number of shares they are respectively entitled 
 to, &c., the act usually prescribes the keeping of 
 another book, (g) which is to contain the names and 
 places of abode of the proprietors ; it is the former 
 of these books that the act usually makes evidence(/«) 
 of the proprietorship, and this must be understood 
 as meant by the act, even where the description in 
 part applies to the latter book, (h) Sometimes, how- 
 ever, the production of both these books is required 
 by the act ; and, in such a case, both must accord- 
 ingly be produced at the trial, to constitute prima 
 facie evidence of the proprietorship, (i) 
 
 491. Although the register book is prima facie 
 evidence of a party's proprietorship, yet it is only 
 so from the period of the company's seal being set 
 to the entry of the defendant's name therein, this 
 
 (f) Southampton Dock Company v. Richards, 1 M. & Gr. 448. 
 
 (g) See Companies Clauses Consolidation Act, (8 Vict. c. 
 16,) s, 10, post, App. See also 8 & 9 Vict. c. 113, (act to faci- 
 litate admission in evidence of certain official and other docu- 
 ments,) post, App. 
 
 (h) London Grand Junction Railway Company v. Freeman, 
 ubi supra. 
 
 (0 London and Brighton Railway Company v. Fairclough, 
 2 Railw. Gas. 544 : S. C. 2 M. & Gr. 674.
 
 360 Remedies for or against Railway Companies. 
 
 being the mode prescribed by the act for the au- 
 thentication of the book in question. Where there- 
 fore it is sought to fix a party with liability for calls 
 accruing prior to this time, some other evidence of 
 his proprietorship becomes necessary, (i) And the 
 same where the register is not receivable on account 
 of substantial error, or where both the register and 
 other book above alluded to are required to be pro- 
 duced, and only one is put in evidence. (Jc) 
 
 Such evidence, in the case of an original propri- 
 etor, would usually consist of proof of the defend- 
 ant's having signed the subscription deed ; or per- 
 haps evidence of his having acted as a proprietor bj" 
 payment of the deposit and prior calls, attending 
 meetings, S;c., might be sufficient. (/) In the case of 
 one claiming by transfer, the usual evidence is the 
 deed of transfer itself, which is in general required (7?0 
 by the act to be given into the possession of the 
 company, and the transfer book of the company, 
 containing the memorial of the assignment. 
 
 492. The transfer or memorial book is per se 
 evidence of the date of the entry of the transfer, and 
 this without proof of how or by whom it was made 
 up, or at what time the entry of the transfer in 
 question was written therein. (?i) 
 
 493. Although no memorial of the transfer be 
 
 (i) Cheltenham Railway Company v. Price, 9 C. Sc P. 58 : 
 Aylesbury Railway Company v. Thompson, 2 Railw. Cas. 674. 
 
 (k) See ante, 359, n.(0. 
 
 {I) See Cromford and High Peak Railway Company v. Lacey, 
 3 Y. & .T. 80. 
 
 (m) See Companies Clauses Consolidation Act, (8 Vict. c. 
 16,) s. 15, post, App. 
 
 (n) Aylesbury Railway Company v. Thompson, 2 Railw. Cas. 
 676.
 
 Remedies for Company against Shareholders. 3G1 
 
 entered in the company's books, still if they have 
 possession of the deed there is nothing to prevent 
 them from treating the defendant as proprietor of 
 the share under the legal effect of the deed, the 
 provision as to the memorializing of deeds of trans- 
 fer being intended only for the security of the com- 
 pany, and not to effect any alteration in the common 
 law operation of the deed, (n) 
 
 494. Next, of the evidence of the making of the 
 calls, (o) According to the usual provisions of a 
 railway act, this consists of the minute book of the 
 company, containing the resolution of the directors 
 for the making of the call. It is usually required to 
 be signed by the chairman of the meeting at which 
 the calls are made, by way of authentication. Where, 
 on the production of the book, it bears a signature, 
 purporting to be that of the chairman, the signature 
 must, according to the usual provisions of a railway 
 act, be presumed to be that which it professes to 
 be, without further proof that the party so signing 
 actually presided at the meeting, or signed the 
 book. (2?) If the signature be that of the proper 
 party, it makes no difference that it appears to be, 
 and, in point of fact is, appended, not at the parti- 
 cular meeting where the resolution is passed, but at 
 a subsequent meeting, at which the same party 
 
 (71) London and Brighton Bailwdy Company v. Fairclougit , 2 
 M. & Gr. 674; S. C. 2 Railw. Cas. 558. 
 
 (0) See Companies Clauses Consolidation Act, 8 Vict. c. 16, 
 s. 98, post, App. 
 
 (p) Sheffield, Ashton-nnder-Lyne and Manchester Railway 
 Company v. Woodcock, 2 Railw. Cas. 522 ; S. C. 7 M. & W. 
 574.
 
 362 Remedies for or against Railway Companies. 
 
 presides, (jf) And it has been held sufficient, even 
 though the party by the form of his signature profess 
 simply to confirm the minutes in question, and not 
 to sign them as original matter, as where a resolution, 
 dated August 18, was signed " confirmed August 25, 
 J. L, Chairman." (r) 
 
 495. Where a shareholder is sued for calls, he 
 will not be allowed to inspect and make extracts 
 from the minute books of the company, at least 
 where his object is to find out some possible de- 
 fence, and not to enable himself to plead properly a 
 particular plea ; and this although the company's 
 act gives a power to any general or special general 
 meeting of the company to call for and inspect all 
 books, &c. of the company, {s) 
 
 496. II. Of remedies in equity, Where the di- 
 rectors of a railway company are guilty of any frau- 
 dulent or improper practice, to the detriment of the 
 general interests of the concern, the company may, 
 it is conceived, file a bill in equity for relief, (f) 
 
 (q) Southampton Dock Company v. Richards, 2 Railw. Cas. 
 216 ; S. C. 1 jNI. & Gr. 448; West London Raittuay Company 
 V. Bernard, 22 Law Journ. Q. B. 68 ; S. C. 3 A. & E. N. S. 
 876 ; London and Brighton liailway Company v. Fairclough, 2 
 M. & Gr. 674. 
 
 (^r) West London Railway Company v. Bernard, ubi supra. 
 
 (s) The Birmingham, Bristol, and Thames Jimction Railway 
 Company v. White, 2 Railw. Cas. 863 ; S. C. 1 A. & E. N. S. 
 282. 
 
 («) Attorney-General V. Wilson, Cr. & Ph. 1. See Society of 
 Practical Knowledge v. Abbott, 2 Beav. 559. Where third par- 
 ties are implicated in the misconduct of the directors, as to how 
 far ihey may properly be made defendants to the suit by the 
 company, see Lund v. Blanshard, 4 Hare, 9.
 
 Remedies for Company against Strangers. 363 
 
 Sect. 2. — Of Remedies for the Company against 
 Strangers. 
 
 I. — At Law. 
 II. — In Equity. 
 III. — Of Criminal Remedies. 
 
 I. Of Remedies at Law. 
 
 497. I. By action. A railway company has the 
 like remedies at common law for injuries to its pro- 
 perty, or for the non-performance of contracts con- 
 cluded with it, that any ordinary person has. For 
 a trespass therefore on the line of railway, it may 
 maintain an action of trespass as any other per- 
 son. (t<) 
 
 The act usually provides what shall be good ser- 
 vice of process by the company, viz., either personal 
 service thereof, or a delivery of the same to some 
 inmate at the last or usual place of abode of the 
 other party. 
 
 In case of legal proceedings being taken by the 
 company for any injury to personal property either 
 belonging to or deposited with the company, whe- 
 ther by way of destruction, damage, conversion, or 
 the like, the act usually provides that it shall be 
 sufficient for the company to describe such property 
 as the property of the company, and as taken, &c. 
 from them, and to show at the trial their possession 
 of the article, either actual or constructive, without 
 giving any other proof of title. 
 
 (■u) Grand Junction Uaiiwai) Company v. Wliite, 2 Raihv. 
 Cas. 559; S. C. 8 M. & W.2I4.
 
 364 Remedies for or against Railway Companies, 
 
 498. 2. By certiorari, and generally by way of 
 summary application. This species of remedy it 
 may be open to the company to adopt under various 
 circumstances ; one however of the most usual cases 
 is where a fatal accident occurs on the railway, and 
 the jury on the inquisition before the coroner im- 
 pose a deodand on the company, of which the latter 
 seek to get rid. In such case, if the inquisition be 
 defective, so that no judgment can be given upon 
 it, the company, after i-emoving the record by cer- 
 tiorari, may move the court to quash it. To ground 
 such a motion as this, however, the defects must be 
 palpable and material defects ; as, for instance, 
 where the inquisition on the face of it discloses a 
 want of jurisdiction, (a:) or omits to state what is 
 essential to be stated in order to originate the juris- 
 diction of the coroner, [y) or gives an insufficient 
 description of the cause of death, [z) or finds as 
 deodand what is not properly subject of deodand, 
 or misdescribes the owners, (a) as where an inquest 
 described the engine and carriage moving to the 
 death as the goods and chattels and in the posses- 
 sion of '' the proprietors of the Hull and .Selby 
 Railway, Src." that not being their name of incor- 
 poration, (fl) 
 
 (i) See Heg. v. Great Western Railuay Company, 3 A. & E. 
 N. S. 333 ; but see 6 6c 7 Vict. c. 12, and ib. c. 83. 
 
 (y) Rex V. Evett, 6 B. & C. 247. 
 
 (s) Reg. V. Stockdale and Darlington Railway Company, 8 
 Dowl. P. C. 516. 
 
 (a) Reg. V. West, 2 Railw. Cas. 613 ; S.C. I A.&i E. N. S. 
 826. Inquest quashed for finding that death caused by felonious 
 act, and imposing a deodand on the instrument of death ; Reg. 
 V. London and Birmingham Railway Company, 2nd June, 1841. 
 So for finding that which moved to the death to be the property
 
 Remedies for Compamj against Strangers. S&5 
 
 499. Where several persons meet their death by 
 the same engine, &c., and at the same time, the 
 engine, it should seem, can only be forfeited once 
 for all. Therefore if several inquisitions are taken, 
 each making the engine a deodand, the company, it 
 should seem, may traverse or perhaps may move to 
 quash the proceedings. But they cannot, where the 
 deodands have been estreated into the court of ex- 
 chequer, procure a stay of proceedings on all the 
 inquisitions but one, on payment of the deodand 
 found by that one, the day of the death being no 
 essential part of the finding, and therefore the ob- 
 jection not appearing on the face of the record, (i) 
 
 500. A coroner's inquest may be quashed in part, 
 
 of A. B. and others ; Tieg. v. Newcastle and Darlington Railway 
 Company, 1845. In this case there were two additional grounds 
 of objection, viz. that the inquest did not show how the deceased 
 came by his death, or that he died of the wound which he re- 
 ceived. The inquest may also be quashed for the misconduct of 
 the coroner or the jury ; Jervis on Coroners, 287. Inquest 
 quashed (jimong other grounds) on the ground that, after the 
 verdict was recorded and the jury discharged, the coroner re- 
 assembled them for the purpose of inserting in the inquisition the 
 value of the instrument moving to the death ; Reg. v. York and 
 Noi'th Midland Bailivay Company, 1841. But it is no objec- 
 tion 10 an inquisition that it is held before the coroner's deputy, 
 the coroner being engaged in holding an inquisition in another 
 place ; and where it is well commenced in his absence from such 
 cause, his accidental presence during a part of the inquiry can 
 make no difference, but the deputy may continue it to the end. 
 The conclusion of the inquisition was as follows: " In witness, 
 &c. A. B. coroner, by C. D. his deputy," it was held an unob- 
 jectionable, if not the most correct mode of signature ; Reg, v- 
 Perkins, 9 Jur. 686. 
 
 (6) Reg, v. Eastern Counties Railway Companit, lOM. & W. 
 58 ; S. C. 3 Railw. Cas. 145.
 
 366 Remedies for or against Railway Companies. 
 
 and stand good for the remainder. Thus where a 
 coroner's jury found a verdict of manslaughter, and 
 laid a deodand on the instrument of death, the court 
 on motion quashed the inquisition so far as regarded 
 the finding of the deodand. (c) 
 
 501. Although a court will sometimes quash an 
 inquisition on motion for defects of the above de- 
 scription, yet the general inclination of the court is 
 to leave the party contesting it to his remedy by 
 traversing or demurring, (d) A coroner's (e) inqui- 
 sition stated as the cause of death the company's 
 improperly, &c. causing and permitting the use of 
 two engines, owing to which the engines were pro- 
 pelled against each other, and a party riding on one 
 was killed, and found the engine to be moving to the 
 death. &c. ; the court refused to quash the inqui- 
 sition on motion, {e) 
 
 II. Of Remedies in Equity. 
 
 502. A railway company is in general entitled to 
 the like remedies in equity as an ordinary person, 
 for the protection of its property, or in regard of 
 contracts concluded with it. Where therefore a 
 railway company contract for the purchase or taking 
 of land, they may go into equity to have a specific 
 performance of that contract decreed against the 
 opposite party. (/) 
 
 503. So likewise a railway company may file a 
 bill in equity to be relieved against any fraudulent, 
 
 (c) Reg.y. Polworth, 9 Dowl. P. C. 1048. 
 
 (d) Reg. V. Brownlmc, 1 1 A. & E. 119. 
 
 (e) Reg, V. Grand Junction Railway Company, 11 A. 6c £. 
 128, n. (a). 
 
 (/) See ante, p. 138.
 
 Remedies for Company against Strangers. 367 
 
 oppressive or unfair dealing, on the part of a third 
 party. So likewise a court of equity will restrain a 
 party by injunction from doing what is calculated 
 materially to interfere with the construction of the 
 railway ; or seriously to obstruct it when made, or 
 the works belonging to it ; as for instance, from 
 taking up the rails on a part of the line, erecting a 
 fence across the line, or the like, (g) This of 
 course supposes that the company are proceeding 
 in a course authorized by law, for where they go 
 beyond the limits of their powers, or act contrary 
 to or in defiance of another's legal rights, they 
 cannot of course call for the protection of a court of 
 equity. (Ji) 
 
 504. So likewise in the case of an attempted 
 illegal interference by one company with the traffic 
 of another, it may be to acquire for the former the 
 whole of such traffic, or to divide it between the 
 companies in a greater or less proportion, a court 
 of equity will exercise its jurisdiction to grant an 
 
 {g) ^ee London and Birmingham Raikvay Company v. Grand 
 Junction Canal Company, 1 Railvv. Cas. 224 ; London and 
 Brighton Railway Company v. Blake, 2 Railw. Cas. 322. So 
 where one railway company has a right at law to the temporary 
 use of the land of another company, by way of easement, for a 
 purpose necessary to the construction of their line, such, for in- 
 stance, as carrying a bridge over the line of the latter company, 
 on a motion for an injunction by the former company to restrain 
 the obstruction of their works, a court of equity, it seems, has 
 jurisdiction to award and secure to them possession of such 
 temporary easement; Great North of England, 8)C. Railway 
 Company v. Clarence Railway Company, 1 Coll. 517. 
 
 (/i) London and Brighton Railway Company v. Cooper, 2 
 Railw. Cas. 312 ; see also Durham and Sunderland Railway 
 Company v. IVawn, ib. 395 ; S. C. 3 Beav. 119.
 
 36s Remedies for or against Raibvay Companies. 
 
 injunction, either bj^ order upon motion, if the mis- 
 chief threatened is irreparable, or at any rate by 
 decree, the case being one where damages would 
 be an inadequate remedy, and the protection of the 
 right in specie is the only way of doing complete 
 justice, (i) The plaintiffs moved for an injunction 
 to restrain the defendants from using in a manner 
 alleged to be illegal, and calculated to interfere with 
 the plaintiff's traffic, a communication (by branch 
 rails) with plaintiff's railway : and also from using 
 certain other rails, which connected a certain other 
 railway with a station of the defendants ; and also 
 from using in like manner such station itself. The 
 court refused to interfere by injunction in that stage 
 of the proceedings, but left the parties to their legal 
 remedies in the first instance, the plaintiffs having 
 failed to show that, by using the communication, 
 rails, or station, in the manner complained of, any 
 destruction or irreparable injury would result. 
 The Vice-Chancellor there lays it down in the course 
 of his judgment, that, in cases of trespass under 
 colour of title, where the mischief ajiprehended is 
 irreparable, a court of equity will exercise its juris- 
 diction to grant an injunction, and, whether the mis- 
 chief be irreparable or not, it will by decree, if not 
 by order upon motion, extend the jurisdiction of 
 preventive justice to all cases of trespass, in which 
 damages would be an inadequate and uncertain 
 remedy, and the protection of the right in specie is 
 the only mode of doing complete justice, (i) 
 
 .505. Where in a suit of this kind, the question of 
 
 (i) North Union Railway Compani/ v. Bolton and Preston 
 Railivay Company, 3 Railw. Cas. 348.
 
 Remedies for Company against Strangers. 369 
 
 right is a doubtful one, and such as is proper to be 
 submitted to a court of law, a court of equity, while 
 it puts the case in proper train for being tried by a 
 court of law, at the same time takes into account the 
 balance of inconvenience, and as this preponderates 
 on the one side or the other, grants, continues or 
 dissolves either wholly or in part the injunction 
 prayed by the company, so as best to reconcile in the 
 interim the interests of the contending parties, {k) 
 
 III. Of Criminal Remedies. (Jt) 
 
 .506. If a party is guilty of a tort to property on 
 a line of railway, whereby the public safety is en- 
 dangered, he is, it seems, liable to be indicted for 
 the same. Thus a party has been indicted for setting 
 a steam engine going on a railway by turning on the 
 steam, and thereby endangering the lives of her 
 
 (A.) Clarence Railway Compa7iy v. Great North of England, 
 Clarence, and Hartlepool Junction Eaiiway Company, 2 Railw. 
 Cas. 763 : S. C. 6 Jur. 269 ; Great North of England. Clarence, 
 ^nd Hartlepool Junction Railtvay Company v. Clarence Railway 
 Company, 1 Coll. 507 ; see also North Union Railway Company 
 V. Bolton and Preston Junction Railway Company, 3 Railw, 
 Cas. 34r,. 
 
 (/) As to criminal remedy for wilful obstruction of railway, 
 Sec, see ante, p. 344 ; also as to remedies by way of summary 
 application to justices of peace, &c. in cases of misconduct 
 of servants, &c., wilful trespasses on the railway, &c., see ante, 
 p. 342, et seq. Also as to penalty under Railways Clauses 
 Consolidation Act, (8 Vict. c. 20,) for obstructing parties law- 
 fully engaged under company's authority in setting out line of 
 railway, see act, s. 24, post, App. ; and as to remedy against 
 passengers practising frauds on company under same act, and 
 power of apprehending parties so offending, see ib. ss. 103, 104, 
 post, App.
 
 370 Remedies for or against Railway Companies. 
 
 majesty's subjects, (m) And if a party out hunting 
 wrench off the locks of gates that secure the rail- 
 way, and then ride on after the hounds, leaving the 
 gates open, semble, he would be indictable for the 
 wilfully leaving the gates open, and exposing the 
 traffic on the line to interference and danger, (m) 
 
 Sect. Ill, — 0/ Remedies for Individual Members of 
 a Company against the Company. 
 
 I. At Law. 
 II. In Equity. 
 
 I. Of Remedies at Law. 
 
 507. 1. By action. In general a member of a 
 company can have no ground of action against the 
 company. But where the act constituting the com- 
 pany declares, as it usually does, that the first monies 
 received under the act shall be applied in discharge 
 of the expenses incurred in obtaining the act, it 
 should seem that a member, who has expended his 
 time, labour or money in obtaining the act, may 
 maintain an action against the company for the fair 
 value thereof, though in such case he should it 
 seems be prepared to fix the company with the 
 
 (w) Beg. V. Thoroughgood, Chelmsford Quarter Sessions, 
 1842. 
 
 (n) In Reg. v. Elmore, Middlesex Sessions, party indicted on 
 above ground, under Great Western Railway Act; by consent 
 defendant pleaded guilty to one count, and fined one shilling and 
 discharged.
 
 Remedies for Shareholders against Company. 371 
 
 receipt of monies under the act suflRcient to satisfy 
 his claim, (n) 
 
 508. 2. By mandamus. Where a railway company 
 refuse to do any thing prescribed by their act, a 
 shareholder, who is prejudiced by such refusal, may 
 it seems apply for a mandamus against the company 
 to compel them to do it. (o) 
 
 II. Of Remedies in Equity. 
 
 509. If a railway company violate their constitu- 
 tion by seeking to do what they are not authorized 
 by their act to do, or if they are otherwise guilty of 
 a breach of the duties which they owe as a company 
 to the individual members, an individual member 
 may it seems institute a suit in equity against the 
 company, to restrain them from so proceeding. So 
 if the company are guilty of fraud, oppression, &c. 
 against one or more particular members, relief may 
 be had against thein in equity, on the application of 
 the injured party, (^j) 
 
 510. A court of equity therefore will, at the 
 instance of a shareholder, restrain a railway com- 
 pany from applying its corporate funds and credit 
 
 (m) Garden v. The General Cemetery Company, 5 Bing. N. C. 
 253 ; Tilion v. Warivick Gas Light Company, 4 B, & C. 962. 
 
 (o) Reg. V. Eastern Counties Railiuay Company, 1 Railw. 
 Cas. 509 ; S. C. 2 Railw. Cas. 260 ; S. C. 10 A.^& E. 531. 
 
 (p) In Pearson v. London and Croydon Railway Company, 9 
 Jur. 341, a bill was filed by the plaintiff", a shareholder in the 
 company, to have a transfer of his proportionate number of 
 certain new shares issued in pursuance of the lesolutions of a 
 general meeting ; plaintiff" held, on construction of resolutions, to 
 have been too late in his application for the shares, and demurrer 
 to bill for want of equity allowed.
 
 "72 Remedies for or against Railway Companies. 
 
 to purposes not sanctioned by the act of incorpora- 
 tion, (q) 
 
 511. So if the directors of a company were to 
 make calls upon some of the shareholders and not 
 upon othei's, where the act constituting the company 
 contemplated all the shareholders paying rateably, 
 a. court of equity would, it seems, interfere to rectify 
 the error, and put all the shareholders on an equal 
 footing : (r) and until this were done it would like- 
 wise, it seems, in such a case restrain the directors 
 from taking any steps to declare a party's share 
 forfeited for the non-payment of calls made in such 
 direct contravention of the intentions of the legis- 
 lature, (r) 
 
 .512. A shareholder, who has an equity to be pro- 
 tected from the payment of a call, if called on to 
 pay, may apply to a court of equity for relief, (s) 
 As for instance, where the undertaking from subse- 
 quent circumstances becomes impossible of execu- 
 tion, or the complainant is entrapped into becoming 
 
 ((/) Wate V. Grand Junction Water Works Company, 2 Rus. 
 & M. 470. And in Ward v. Society of Attomies, 1 Coll. 370, 
 on a motion made on behalf of the minority for an injunction to 
 restrain the majority of the members of a corporation from sur- 
 rendering their charter, with a view to obtain a new charter for 
 an object different from that for which the original charter was 
 granted, the court granted the injunction until the hearing. 
 
 (r) Judgment of A^ice-Chancellor in Preston v. Grand Collier 
 Dock Company, 2 Railw. Cas. 358; S. C. 11 Sim. 327. That 
 illegal forfeiture of shares ground for relief in equity, see Jones 
 V. Rose, 4 Hare, 52. 
 
 (s) Where an injunction is prayed to restrain company from 
 proceeding with action at law, the party must apply within proper 
 time after the bringing of the action. See Thorpe v. Hughes, 3 
 -Mv. & Cr. 742.
 
 Remedies for Shareholders against Company. 373 
 
 a shareholder by the fraud of the company, or the 
 particular call is fraudulently made, (j.) The mere 
 fact of the invalidity of the appointment of ihe di- 
 rectors, or of a party having taken the shares, in 
 respect of which it is sought to make him liable, for 
 the accommodation of the company, is per se no 
 ground for such relief, (ij) Even where the com- 
 pany subsequently take steps in order to relieve the 
 party from the liability, to which he has thus sub- 
 jected himself for the company's benefit, it would 
 seem questionable whether such steps can be taken 
 to have the effect intended them ; unless indeed 
 they strictly follow the forms prescribed by the act 
 for the purpose, (m) Neither can a party in general 
 be heard to allege the nature of the undertaking as 
 a ground for relief, as for instance, that the greater 
 part of the subscriptions are fictitious, being made 
 in trust for the company, and for the purpose of 
 satisfying the standing orders of the Iiouses of par- 
 liament, and thereby enabling the subscribers to get 
 their act of parliament, it being the province of the 
 
 (t) See judgment of Vice-Cliancellor in Mangles v. Grand 
 Collier Dock Company, 10 Sim. 519 ; Richardson v. Larpent, 2 
 Y. & Coll. N. C. 507 ; Thorpe v. Hughes, 3 My. & Cr. 742. 
 
 (it) Mangles v. Grand Collier Dock Company, ubi supra ; 
 Playfair v. Birmingham, Bristol and Thmnes Junction Railway 
 Company, 1 Railw. Cas. 640. Where four directors conducted 
 the business of a joint stock company for a considerable time, 
 and had various dealings with a third party as agent of the com- 
 pany, it was held that it was not competent to such third party 
 to object, in a suit against him, that the four directors did not 
 sufficiently represent the company, notwithstanding the deed of 
 association of the company provided that the business of the 
 company should be transacted by six directors; Bensonw. Hadfield, 
 4 Hare, 32.
 
 374 Remedies for or against Railway Coinpanies. 
 
 legislature to judge of the policy and fairness of the 
 scheme, &c., and consequently if they are satisfied 
 on this head, it is hardly competent for any other 
 jurisdiction to say that the scheme is nevertheless ab 
 initio a fraud and a nullity, {x) 
 
 513. In cases of the above kind, where the plain- 
 tiff alleges an equity, in order to interfere with an 
 admitted legal right, it requires a very strong case 
 indeed for the court of equity to stop the action by 
 injunction. It can only indeed be where the court 
 clearly sees that upon the suit coming on for hear- 
 ing, the relief sought by the bill must be decreed, (z/) 
 Where the equity is not thus clear, the usual course 
 is for the court to give the plaintiff the opportunity, 
 if he so elects, of giving judgment in the action at 
 law, and paying the money into court ; or if he is 
 unwilling to consent to this, to let the trial go on, 
 •with liberty to apply after verdict, (z) 
 
 514. Next as to the proper persons to be made 
 parties to the suit. Where a single shareholder as 
 such has an interest in a particular subject adverse 
 to that of the company, and seeks relief on that 
 score, he may file a bill in his own right against the 
 company. But if several have a common interest in 
 the relief sought by the suit, all it seems ought to 
 be made parties, (a) If the parties thus interested 
 are too numerous to be made parties to the suit, 
 
 (x) See ante, p. 38 et seq. 
 
 (i/) Playfair v. Birmingham, Bristol and Thames Junction 
 Railway Company, 1 Railw. Cas. 640. 
 
 (s) Ibid. 
 
 (a) Semble, if a shareholder, after parting with his shares in a 
 railway company, files a bill for relief in a matter touching those 
 shares, the transferee ought to be made a party ; see Mangles v. 
 Grand Collier Dock Company, 10 Sim. 519 ; S. C. 2 Railw. 
 Cas. 359.
 
 Remedies for Shareholders against Companij. olo 
 
 then some one or more may it seems file a bill in his 
 or their own names for the benefit of all. (h) If the 
 suit be substantially a suit for the general weal of 
 the main body of the shareholders, it would seem to 
 form no objection to a party suing in his own name 
 on behalf of those others, that he has a particular 
 interest beyond that of the body he represents in 
 a portion of the relief sought by the bill. A party 
 filed a bill on behalf of himself and the general body 
 of the shareholders, except those made defendants, 
 (viz. the directors and subscribers for the shares 
 hereinafter alluded to, &-c.) praying that the direc- 
 tors might be decreed to enforce the payment of 
 calls in respect of certain shares, originally taken for 
 the accommodation of the company, and might also 
 be restrained from declaring the plaintiff's shares 
 forfeited, &c. It was held that the bill could not 
 have been constituted otherwise than as it was by 
 the plaintiff on behalf of himself and all the other 
 members, except the defendants, though some of 
 those others had been present and voted at the 
 
 (h) Preston v. The Grand Collier Dock Company, 2 Railw. 
 Cas. 335; S.C. 11 Sim. 327. See also Richardson\. Hastings, 
 22 Law Journ. Ch. 142 ; S.C.I Beav. 323 ; Walluwrth v. Holt, 
 4 Myl. & Cr. 619; Lund v. Blanshard, 4 Hare, 9; Jones v. 
 Rose, ibid. 52. There a- bill filed by several members of a joint 
 stock company on behalf of themselves and all the other share- 
 holders, except the defendants, was allowed to be amended by 
 striking out " on behalf of themselves and all the other share- 
 holders," &c., and making it the bill of the plaintiffs on the 
 record only. As to effect of common injunction to stay pro- 
 ceedings at law, in case of a suit so framed, and when benefit of 
 inj unction extended to the other shareholders not individually 
 named on the record, and what apphcation necessary for that 
 purpose, &c., see Lund v. Blanshard, 4 Hare, 290.
 
 .370 Remedies for or against Railway Cortipanies. 
 
 meeting of the company, which sanctioned the sub- 
 scribers for the shares in question being relieved 
 from payment of calls, (c) 
 
 .51.5. We are here supposing tlie case of a suit 
 brought l)y one or more shareholders against the 
 company, or, in other words, a case where the relief 
 sought by the bill affects the general interests of 
 the entire body. If there are at the same time par- 
 ticular members, who, either from the relation that 
 they bear to the company, or from some interest 
 that tliey have in common, opposite to that of the 
 plaintiHor plaintiffs, are in a peculiar manner liable 
 to be adversely affected by the suit, those parties 
 ought, it seems, to be joined as co-defendants, [d) 
 And generally it would seem to be necessary for a 
 plaintiff to join as co-defendants with the company 
 some one or more of its officers or of the other 
 parties principally concerned in the management of 
 its concerns, when he seeks for a discovery against 
 the company, (e) 
 
 516. Of the framing of the bill. A plaintiff must 
 take care to rest his claim to relief on the proper 
 grounds, as he cannot have a relief different from 
 the case made out by the bill, and he must state 
 those grounds with sufficient clearness and parti- 
 cularity. 
 
 Where a party files a bill on his own account and 
 
 (e) Preston v. Grand Collier Dock Company, ubi supra. 
 
 (d) Richardion v. Larpent, 2 Y. & Coll. N.C. 507 ; Preslon 
 V. Grand Collier Dock Company, ubi supra ; Lund v. Blanfhard, 
 4 Hare, 9. 
 
 (i-) As to joinder of officers and members of a corporation as 
 co-defendants with corporate body, see Glasscott v. Copper 
 Milters' Company, 11 Sim. 305, and cases there cited.
 
 Remedies for Shareholders against Company. 'i77 
 
 that of the general body of the shareholders, he 
 ought, it seems, to allege therein that the number, 
 &c. of the shareholders is such as renders it im- 
 practicable to make them all parties. {/) 
 
 Sect. 4. — Of Remedies for Strangers against Railway 
 Companies. 
 
 I. At Common Law. 
 II. In Equity. 
 III. Criminal Remedies. 
 
 I. Remedies at Common Law. 
 
 1. By Action. 
 
 2. By Mandamus. 
 
 3. By Certiorari. 
 
 .517. Of Remedies by Action. Under this head 
 it is proper to treat of the four following points, 
 1st, where an action in general lies against a railway 
 company ; 2ndly, of the protection usually given by 
 the act in respect of a particular class of acts ; 3dly, 
 of the process ; and 4thly, of the pleadings. 
 
 518. 1st, as a general rule, an action is the proper 
 remedy against a railway company for any act done 
 by the company to the prejudice of another, other- 
 wise than in the execution of their statutory powers, 
 or for which the compensation clause of the com- 
 pany's act makes no provision, (g") 
 
 (_/') See Preston v. Grand Collier Dock Company, ubi supra. 
 
 (g-) See Turner v. Sheffield and Rnlherham Railway Company, 
 10 M. & W. 425 When assumpsit for money had and received 
 held to lie against railway company, see Parker v. Great Western 
 Railway Company, 22 Law Journ. C. P. 105; S. C. 7 Scott's 
 N. R. 835 ; company liable to action for penalty though power 
 given to recover same before two justices ; Collinson v. Newcastle
 
 378 Remedies for or against Railway Companies. 
 
 519. 2ndly. Of the frotection usually accorded by 
 a railway act to the company in respect of a imrti- 
 cular class of acts. It may be proper here to pre- 
 mise that though the clause giving the protection 
 makes no express mention of the company, but uses 
 the terms person and defendant in describing those 
 it is intended to comprehend, this must nevertheless 
 be taken to include the company ; and this notvpith- 
 standing in other parts of the act the word person 
 cannot be construed to include the company, as 
 where it is put in opposition to the word company, 
 or is expressly confined to the directors. To hold, 
 otherwise indeed would be to defeat the obvious in- 
 tention of the legislature in inserting such a clause, 
 by excluding from its protection the class of defend- 
 ants most in need of it. (Ji) 
 
 520. To return then to the consideration of the 
 class of acts protected by the act, these are in ge- 
 neral acts done or omitted to he done in pursuance 
 of the act. By the latter branch of the above exemp- 
 tion would seem to be meant all omissions of any 
 duty imposed upon the company by their act ; such 
 for instance as a neglect by the company, as pro- 
 prietors of the railway, to repair or fence it, in con- 
 sequence of which the travelling along it is rendered 
 dangerous to the public ; assuming, that is to say, 
 
 and Darlington Railway Company, 1 C. & Kirw. 546; action 
 held to lie on bond against company, though holders of bonds 
 entitled by act to lien on tolls, 6*0. of company without prefer- 
 ence by reason of priority of security, &c. and although other 
 bonds unsatisfied, the lien being only an additional security ; Hill 
 V. Manchester and Salford Water Works Company, 2 B. 6c Ad. 
 544. 
 
 (fe) Boyd V. Croydon Railway Company, 4 Bing. N. C. 669.
 
 Remedies for Strangers against Railway Comps. 379 
 
 such an obligation to be either expressly or impliedly 
 cast upon the company by their act. Hence it 
 would seem to follow that where it is sought to 
 charge the company with misconduct as carriers, 
 and not merely as railway proprietors, the case would 
 not be within the above exemption ; because, though 
 the act usually licenses and authorizes the company 
 to become carriers, still it does not render it com- 
 pulsory on them to do so. (i) In what capacity it is 
 intended to charge them in a particular case, must 
 of course depend on the frame of the declaration m 
 that case. In an action against a railway company, 
 the declaration alleged the company to be owners 
 and proprietors of a railway, and that being such 
 owners they received certain horses to be safely and 
 securely carried on their railway from L. to B., and 
 there delivered, and that through their neglect in 
 carrying the horses and in the management of their 
 carriages, the carriages containing the horses were 
 thrown off the line, and one of the horses was killed 
 and the rest injured. It was held that the company 
 were charged in the character of common carriers, 
 and were consequently not entitled to any notice of 
 action, (/c) Under a declaration in the above form 
 the action must still be deemed to be brought 
 against the company in the capacity of carriers 
 rather than of railway proprietors, although in con- 
 sidering the evidence against them as carriers, it is 
 
 (i) Palmer v. The Grand Junction Railway Com-pany, 4 M, 
 & W. 749 ; Carpue v. The London and Brighton Railway Com- 
 pany, 22 Law Journ, Q. B. 133 ; S. C. 5 A. & E. N. S. 747. 
 
 (k) Palmer v. Grand Junction Raihoay Company, 4 M. & 
 W. 749.
 
 380 Remediex for or against Railway Companies. 
 
 impossible to exclude some reference to the proof 
 of the actual state of the railway. (/) 
 
 521. With respect to the former branch of the 
 protecting clause, viz. that which speaks of acts 
 done in pursuance of the act, a thing, it seems, is to 
 be considered as done in pursuance of an act where 
 the person who does it is acting honestly and bona 
 fide either under the powers which the act gives, or 
 in discharge of the duties which it imposes. Though 
 he may erroneously exceed the powers the act 
 gives, or inadequately discharge the duties, yet if he 
 acts bona fide in order to execute such powers, or 
 to discharge such duties, he is to be considered as 
 acting in pursuance of the act, and as entitled to the 
 protection conferred upon persons whilst so acting. (m) 
 
 522. Next as to the nature and extent of the pro- 
 tection afforded by the act, and herein (1st,) of the 
 limitation of actions; (2dly,) of the notice of action ; 
 and (Srdly,) oi tender of amends. (1st.) Supposing 
 the act to be of such a character as fairly to fall 
 within either branch of the above description, the 
 statute usually requires that all actions against the 
 company in respect thereof shall be brought within 
 a certain period next after the act committed, or in 
 case there shall be a continuation of damage, then 
 within the like period after the committing of such 
 damage has ceased. In considering the effect of the 
 above limitation, there are four cases to be distin- 
 guished ; ] St, where the act of the company pro- 
 duces immediate injury and that injury is complete 
 
 (/) Carpue v. The London and Brighton Railway Cotnpanif, 
 22 Law Journ. Q. B. 133 ; 6. C. 6 A. & E. N.S. 747. 
 
 (m) See judgment of Bayley, J., in Smith v. Shaic, 10 B. & 
 C. 284.
 
 Remedies for Strangers against Railway Comps. .381 
 
 as soon as the act is done ; in this case the time of 
 limitation must be considered to run from the doing 
 of the act ; (/j) 2ndly, where the act every day causes 
 a fresh accession of injury, as in the case of forcing 
 back or diverting water, or the misconstruction of a 
 drain, whereby a continuing leakage is occasioned 
 into adjoining land, and its value in consequence 
 deteriorated, here the period of limitation must it is 
 conceived be considered to run from the cesser of 
 tlie damage ; (o) Srdly, where there is a continuing 
 
 (71) Lloyd V. Wigney, 6 Bing. 489 ; Lord Oakley v. Ken- 
 sington Canal Company, 5 B. & Ad. 138. 
 
 (o) Kennel and Avon Canal Company v. Great Western Rail- 
 way Company, 23 L. J. Q. B. 325 ; S.C.Q Jur. 788. That 
 was an action of debt to recover a certain amount of liquidated 
 damages, as compensation to the plaintiffs for impediment and 
 obstruction to the traffic upon their canal by certain operations 
 of the defendants for the improvement of their railway. The 
 defendants were incorporated by the 5 & 6 Will. 4, c. 107, under 
 the powers of which their railway was constructed ; by 6 Will. 4, 
 c. 37, they were enabled to alter their line of railway ; and a 
 further power, with a like effect, was given them by 1 Vict. c. 
 91. The works by which the alleged damage to the plaintiffs 
 arose were carried on under the authority of the latter act. 
 
 By sect. 223 of stat. 5 & 6 Will. 4, c. 107, (the original act), 
 no action was to be brought against any person for anything 
 done or omitted to be done in pursuance of that act, or in exe- 
 cution of the powers, authorities, or any of the orders made, 
 given, or directed in, by or under that act, unless, amongst other 
 things, such action should be commenced within six calendar 
 months next after the act committed, or, in case there should be a 
 continuation of damage, then within six calendar months next 
 after the doing or committing the damage should have ceased. By 
 1 Vict. c. 91, which embodied, by way of reference, the above 
 provision of the 5 & 6 Will. 4, it was enacted, that if, by reason 
 of any accident, or in the execution of any of the works by that 
 act authorized, otherwise than from neglect or mismanagement
 
 382 Remedies for or against Railway Companies. 
 
 cause of injury, but the damage ceases from time to 
 time and then revives ; here it seems the time of 
 each fresh cessation of damage must be taken as the 
 point from which the period of limitation is to be 
 measured ; (^) 4thly and lastly, where the act of the 
 company is actionable only by reason of the conse- 
 quential damages resulting from it, and no imme- 
 diate damage is thereby occasioned ; in this case 
 the period of limitation must be measured, not from 
 the doing of the act, which causes the consequential 
 injury, but from the happening of such injury. (^) 
 
 523. (2nd\y.^ Of notice of action. In cases falling 
 within the above provision, not only must the action 
 
 of the canal company, the canal or tovving paths should be ob- 
 structed so that barges should be impeded, the railway company 
 should pay to the canal company, as or by way of ascertained 
 damages, 10/. for every hour during which such impediment 
 ©r obstruction should continue, and, in default of payment 
 on demand, the said canal company might sue for the same. 
 The impediment and obstruction complained of took place for 99 
 consecutive hours in November, 1840, and for 115 consecuiive 
 hours in June, 1841. In May, 1842, the canal proprietors de- 
 manded compensation for the above obstructions, which the 
 demand described as having ceased respectively in the above 
 months, and on the 27th day of July, a.d. 1842, brought their 
 action for the sum demanded. The main question was whether 
 the action was brought in time or not. The court were of 
 opinion, looking at the latter part of the section in question, and 
 particularly at the words " in case there shall be a continuation 
 of damage, then, within six calendar months next after the doing 
 or committing of such damage shall have ceased," that the im- 
 pediment and not the demand was to be considered as the cause 
 of action, and consequently that the action was brought too late. 
 
 (p) Blakemore v. Glamorganshire Canal Company, 3 Y. &c J. 
 60. 
 
 y^q) Gillon v. Boddington, 1 Car. & P. 541 ; S. C. R. & M. 
 61 . Roberts v. Bead, 16 East, 215.
 
 Remedies for Strangers against Railway Conips. 383 
 
 be brought within a given period, but prior to its 
 commencement, by way of necessary preliminary, a 
 notice of action must be given by the intended 
 plaintift' to the company. The obvious purpose of 
 this notice is to inform the company of the grounds 
 of complaint on which the other party intends to 
 rely. It must accordingly include the plaintiff's 
 entire grievance, as he can recover for nothing 
 which is not within the terms of his notice, (r) 
 
 524. (Srdly.) A still further protection is usually 
 given to the company by the act's empovvering them, 
 in case of any trespass, &c. committed in the exe- 
 cution of the act, &c., to tender amends (s) before 
 action brought ; if the plaintiff notwithstanding 
 chooses to proceed with his action, he does so at 
 the risk of failing in it, in case the amends tendered 
 prove sufficient. 
 
 525. 3rdly. Of the process, (t) A railway act 
 usually makes provision for the service of process 
 on the company. Either it may be served per- 
 sonally upon a secretary or clerk of the company, 
 or left at the office of the company, or of a secretary 
 or clerk, or delivered to some inmate at such office 
 of the company, or at the last or usual place of 
 
 (r) Lloyd V. Wigney, 6 Bing. 496. 
 
 (s) See Companies Clauses Consolidation Act (8 Vict. c. 16), 
 s. 141, post, App. ; Lands Clauses Consolidation Act (8 Vict, 
 c. 18), s. 135, post, App. ; Railways Clauses Consolidation Act 
 (8 Vict. c. 20), s. 139, post, App. 
 
 (0 As to service of process, &c. on the company under the 
 Companies Clauses Consolidation Act (8 Vict. c. 16), see 
 act, s. 135, post, App. ; under Lands Clauses Consolidation 
 Act (8 Vict. c. 18), see act, s. 134, post, App.; and under 
 Piailways Clauses Consolidation Act (8 Vict. c. 20), see act, s. 
 138, post, App.
 
 384 Remedies for or against Railwaij Companies. 
 
 abode of such secretary or clerk, or in case the same 
 respectively shall not be known, then personal ser- 
 vice on any other agent or officer of the company, 
 or on any one director, or delivering the process to 
 some inmate of the last or usual place of abode of 
 such agent or officer, is to be deemed good service 
 on the company. The mode of service thus pre- 
 scribed by the act must be strictly pursued, (m) 
 
 o2Q. 4thly. Of the ])leadings. A declaration 
 against a railway company must possess the usual 
 requisites of an ordinary declaration. It must there- 
 fore show the nature of the right which the plaintiff 
 alleges to have been violated. 
 
 527. Where it is only in consideration of some 
 precedent or cotemporaneous act to be done by the 
 other side, that a duty is cast upon the company, 
 
 (jt) Evans V. Dublin and Drogheda Railway Company, 23 
 Law Journ. Exch. 245 ; S. C. 4 M. & VV. 142. There the de- 
 fendant's act enacted, that service of a writ upon a secretary of 
 the company, or leaving the same at the company's office, or 
 delivering it to some inmate at such office, or at the abode of the 
 secretary, or in case the same respectively should not be found 
 or known, then service on any other agent of the company, or 
 on any one director of the said company, &c. should be deemed 
 a good service. The company had an office in Dublin : held, 
 that a writ of summons against the company ought to be served 
 in Ireland, and that service of an English writ of summons 
 upon a director in London was bad, and the court set aside a 
 judgment founded thereon. Service, however, might be on a 
 director, where the secretary or other inmates of the company's 
 office could be found; ibid, judgment of Parke, B. See also 
 Doe d. Fisher v. Roe, 3 Railw. Cas. 145, where, in ejectment 
 to recover land, forming part of the bed of a canal in the occu- 
 pation of an incorporated company, service of declaration on a 
 clerk of the company at their office was held sufficient for a rule 
 nisi for judgment against the casual ejector.
 
 Remedies for Strangers against Railway Comps. 385 
 
 the declaration must contain such averments of per- 
 formance or of an offer, &c. of performance (as the 
 case may be) as are requisite to show a liability in 
 the company to perform such duty, (x) In declaring 
 therefore against a railway company as carriers for 
 the not receiving goods tendered them for the pur- 
 pose of carriage, the plaintiff must aver that he was 
 ready and willing to pay the carriage, and that he 
 notified that readiness and willingness to the com- 
 pany ; but he need not it seems allege a strict legal 
 tender, as it is in fact unnecessary, (y) 
 
 528. The declaration must likewise contain a suf- 
 ficient averment of the company's breach of duty. 
 In an action against a railway company, the declara- 
 tion charged that the company upon the occasion of 
 making certain excavations in land near the founda- 
 tions of a house adjoining the plaintiff's house, &c. 
 would not use due care or skill, or take proper pre- 
 cautions in the making of such excavations, and that 
 they proceeded so carelessly with their works, (s) 
 without taking due care and precautions to prevent 
 the house near which they were digging falling 
 against the plaintiff's house, that by reason of their 
 carelessness, &c. and for want of due precautions on 
 the occasion aforesaid, the former house fell against 
 the plaintiff's, &c. ; it was held on general demurrer 
 that the breach contained a sufficient allegation of 
 
 (x) As to necessity of averment of title, &c. in action against 
 company for compensation money, see ante, p. 220. 
 
 (y) PickJ'ord v. Grand Junction Railway Company, 2 Railw. 
 Cas. 592 ; S.C.& M. & W. 372. 
 
 (;) Davis v. London and Blackmail Railway Company, 2 
 Railw. Cas. 308 ; S. C. 1 M. & Gr. 799. 
 
 s
 
 386 Remedies for or against Railway Companies. 
 
 the injury to the plaintiff having been caused by the 
 negligence of the defendants, the term precaution 
 being equivalent in meaning to care and skill. 
 
 529. Next of the grounds of defence and the mode 
 of pleading the same. The act usually empowers 
 the company to plead the general issue, and give the 
 special matter in evidence, where they are sued for 
 any act done or omitted to be done in pursuance of 
 the statute. («) In such a case the company cannot 
 plead special matter together with the plea of the 
 general issue given by statute, (a) 
 
 530. If a railway company be sued for an acci- 
 dent occasioned by some collision on the railway, 
 they may show, by way of defence, that the acci- 
 dent was occasioned by the negligence of the other 
 party, or of those to whose conduct he intrusted 
 himself, or at any rate that there was on their own 
 part no such negligence as the other party might 
 not by ordinary care have avoided, so as to make 
 him out the author of his own wrong, (b) In an 
 action on the case, defences of this nature are open 
 under the general issue, and ought not to be pleaded 
 specially ; (6) but in trespass it is otherwise. 
 
 531. Where a railway company are sued as com- 
 mon carriers for a loss, &c. of goods intrusted to 
 them for carriage, it is a good defence that the 
 goods were of a particular class, in respect of which 
 they were exempted from all liability by virtue of 
 
 (a) See Fisher v. Thames Junction Railioay Company, 5 
 Dowl, 773. 
 
 (6) Armitage v. Grand Junction Railway Company, 6 Dowl. 
 340 ; Bridge v. Grand Junction Railtoay Company, 3 M. & W. 
 244.
 
 Remedies for Strangers against Railway Comps. 387 
 
 their act of incorporation. This defence would also 
 seem to be open under the general issue, (rf) 
 
 532. If a railway company are sued for the con- 
 version of goods, which they are entitled to hold by 
 way of security, or to employ for some given pur- 
 pose, by virtue of a stipulation with the owner for 
 the time being, they may set up in answer their 
 right of lien, or a retainer and employment of the 
 goods upon the terms of and for the purposes con- 
 templated by the stipulation, (e) 
 
 533. Where a railway company plead a plea which 
 amounts to the general issue, and does not consist of 
 matter of excuse, the general replication de injuria 
 is ill. (d) 
 
 534. So likewise where the company justify a 
 conversion of goods, with which they are charged 
 by the declaration, under a right to use the goods 
 for a particular purpose and within a given locality, 
 which is indisputable, but the company have actually 
 used them for a different purpose, and beyond the 
 specified local limits, the plaintiff should new assign, 
 and should not reply de injuria, (e) 
 
 535. 2. Of Mandamus. In treating of this branch 
 of our subject, it is proposed to consider, 1st, when 
 a mandamus lies to a railway comixtny ; 2nd]y, what 
 is necessary to the obtaining it ; 3rdly, the requisites 
 of the writ ; 4thly, the return. 
 
 536. 1st. In what cases a mandamus lies to a rail- 
 
 (ti) Elwell, V. Grand Jttnction Railway Company, 5 AI. & W. 
 669. 
 
 (e) Hawthorn v. Neu'caslle-vpon-Tyne and North Shields 
 Railway Company, 2 Railw. Cas. 305 ; S. C. 3 Ad. & E. N. S. 
 734, n. (a). 
 
 s 2
 
 388 Remedies for or against Railway Companies. 
 
 way company. (/) As a general rule, a mandamus 
 lies against a railway company where they refuse to 
 proceed in some course prescribed by law, or to do 
 what they are required by their act of incorporation 
 to do, and there is no other effectual remedy {g) to 
 compel obedience to the declared will of the legis- 
 
 (/) As to mandamus to make calls or enforce payment of 
 calls made, see ante, pp. 276, 277 ; also as to mandamus to enter 
 probate of will, see ante, p. 249, n. (e) ; as to mandamus to enter 
 minutes of meeting, see Rex v. Mayor, S^c. of Eversham, 8 A. & 
 E. 266, 
 
 (g) But it is no objection to the granting of a mandamus to 
 do a particular act, that an indictment also lies for the omission 
 to do such act, as an indictment may not afford so convenient 
 and effectual a remedy as can be obtained by mandamus ; Rex v. 
 Severn and Wye Railway Company, 2 B. & Aid. 646 ; Reg. v. 
 Bristol Dock Company, 2 A. & E. N. S. 64 ; see also Reg. v. 
 Norwich and Brandon Railway Company, 24 Law Journ. Q. B. 
 24 ; there, by a railway act, the company were required to con- 
 struct a bridge over a river, so as to leave the same width of 
 water-way under the same as existed at the time when the act 
 passed, at the point where the river was crossed, and so that 
 there should be at all times a clear height of five feet above the 
 ordinary level of the river ; and it was further provided, that 
 after notice given to the company by any owner or occupier of 
 lands adjoining the railway that the said bridge was not made 
 according to the true intent and meaning of the act, it should be 
 lawful for such owner or occupier to apply for and obtain an 
 order from a justice of the peace enabling such person to make 
 such bridge accordingly, the expenses to be defrayed by the com- 
 pany. It was held that the remedy given under the act by appli- 
 cation to a justice did not apply so as to prevent a mandamus 
 being granted. And semble, where a power of distress is given by 
 statute which proves fruitless, that does not prevent a manda- 
 mus being subsequently issued. Judgment of Patteson, J., in 
 Reg. V. London and Blackwall Railway Company, 24 Law 
 Journ. Q.B. 42.
 
 Remedies for Strangers against Railway Comps. 389 
 
 lature (h) ; as, for instance, where the company 
 refuse to issue their warrant to the sheriff for the 
 summoningof a jury to assess the damages sustained 
 by a party in the course of the execution of the 
 powers of the act by the company, (i) or to pay 
 into the Bank the amount of the compensation 
 assessed by the jury where the party cannot make 
 out a title, (k) or to take the necessary steps in 
 order to complete their line of railway, (h) or to 
 make watering places in pursuance of the requisitions 
 of their act in lieu of ancient watering places, access 
 to which has been cut off by the railway, (m) or to 
 reinstate and lay down a line of railway which they 
 have taken up, (n) or a road with which they have 
 interfered, and the like, (o) 
 
 537. From what has been said, it is easily disco- 
 verable in what cases a mandamus is not the proper 
 remedy against a railway company. In the first 
 place, a mandamus will not be granted to compel 
 the performance by a railway company of that which 
 is not made compulsory on them by their act, and 
 which being part of the general law of the land, may 
 be enforced by action, (p) Accordingly, a mandamus 
 
 (h) Reg. V. Eastern Counties Railway Company, 1 Railw. Cas. 
 518 ; S. C. 2 Railw. Cas. 260 ; 10 A. & E. 531 . 
 
 (i) Reg. V. Eastern Counties Railway Company, 2 A. & E. 
 N. S. 347, 
 
 (k) See ante, p. 221. 
 
 (7n) Reg. V. York and North Midland Railway Company, 23 
 Law Journ. Q. B. 277. 
 
 (n) Rex V. Severn and Wye Railway Company, 2 B. tk Aid. 
 646. 
 
 (o) See ante, p. 105. 
 
 (p) Exparte Robins,! Dowl.566.
 
 390 Remedies for or against Railway Companies 
 
 was refused to a railway company to compel them 
 to convey goods along their line, no clause in their 
 act of incorporation requiring them to carry the 
 goods of all persons who presented them for con- 
 veyance, though they had agreed with certain per- 
 sons to carr^'^ their goods to the exclusion of all 
 others, (p) Even where the company's act imposes 
 on them an obligation, yet, if there is another re- 
 medy open to the party in whose favour such obli- 
 gation is imposed, equally efficacious as a writ of 
 mandamus, a mandamus will not be granted ; as, for 
 instance, where a railway act enacted, that the com- 
 pany thereby established should in a given event pay 
 to a certain other company a sum not exceeding a 
 given am-ount, the event having happened, it was 
 held that mandamus was not the proper mode of 
 compelling payment of the money, as debt would 
 lie on the statutory obligation. (</) So where it is 
 sought to recover compensation for injuries not oc- 
 casioned in the execution of the company's statutory 
 powers, or which do not fall within the scope of the 
 compensation provided by the statute, the complain- 
 ant ought to proceed by action and not by manda- 
 mus. 
 
 538. Again, the court will not interfere by man- 
 damus where the company are actually and bona fide 
 pursuing the course prescribed by their act, simply 
 in consequence of some delay or misapprehension 
 or error in their course. (?) And, while the works 
 
 (/j) Ex parte Robins, 7 Dowl. 566. 
 
 (g) Reg. V. Huliand Selby Railicay Company, 22 LawJourn. 
 Q.B. 257. 
 
 (r) Reg. V. Eastern Counties Railway Company, 10 A. & E. 
 7, judgment of Lord Denman, C. J.
 
 Remedies for Strangers against Railway Comps. 391 
 
 of the company at a particular spot are still un- 
 finished, the court would not, in general, grant a 
 mandamus to compel the company to summon a 
 jury to assess the compensation for damage done 
 by such works, but would wait till the works are 
 finished, and every thing is done which is likely to be ; 
 and this, as it should seem, notwithstanding there 
 may have been for a part of the time even a total 
 cessation of all operations on the part of the com- 
 pany, (t) This, however, supposes that the company 
 aro proceeding with their works bona fide ; (t) as they 
 would not be allowed, under the pretext of doing 
 further injury, to defer indefinitely the making com- 
 pensation. 
 
 539. So where the departure from what the act 
 prescribes is but in some trifling respect ; as where a 
 company erected a bridge over a road one foot and 
 a half less in height than prescribed by their act, &c. 
 it was held that the inconvenience was not of that 
 nature that a mandamus ought to be awarded, (u) 
 
 540. So likewise a mandamus may be refused 
 where a party fails to come to the court in proper 
 time. Thus, where the mjuries, viz. encroaching on 
 the applicant's land, throwing down 250 feet of 
 hedge, &c., were committed as far back as 1839, a 
 mandamus was refused in 1845, and this notwith- 
 standing negociations had been pending (a) between 
 the parties almost down to the time of the appli- 
 cation. 
 
 (t) Ex parte Parkes, 5 Jur. 435. 
 
 (it) Tleg. V. Eastern Cuur.ties Railway Company, 4 Jur. 318. 
 
 (x) Rei:;. V. Eastern Counties Railtvay Company, 1845 ; as to 
 when lapse of time held not to deprive party of remedy for com- 
 pensation money, see ante, p. 221.
 
 392 Remedies for or against Railway Companies. 
 
 541. Where a mandamus lies against a company, 
 it is, as a general rule, the proper remedy to be pur- 
 sued by the injured party, and no action is main- 
 tainable. Thus where a party is entitled to an ease- 
 ment over lands purchased by the company, {y) he 
 cannot, it should seem, under the usual provisions 
 of a railway act, maintain an action for acts done 
 upon those lands to the prejudice of his easement, 
 but as soon as any damage is actually sustained, he 
 ought to claim compensation under the act. 
 
 542. If part of an injury, for which a party seeks 
 compensation, has been done under the powers of a 
 railway act, the proper remedy for that part is by a 
 mandamus to assess such compensation, and not by 
 an action at law. (z) 
 
 543. Where an application for a mandamus is 
 made merely with a view of obtaining the opinion 
 of the court whether the proceeding by mandamus 
 is the proper one, there being no question bond 
 fide in contest between the parties, the court will 
 refuse to give any decision, but grant the rule for 
 the mandamus, if the applicant likes to take it. (a) 
 
 544. If a party fail in his application for a man- 
 damus by reason of a defect in the way in which he 
 brings his case forward, he is not in general enti- 
 tled to renew the application on amended affidavits, 
 showing no ground of application which might not 
 have been presented before. (6) The only excep- 
 
 (t/) Thicknesse v. Lancaster Canal Company, 4 M. & W. 472. 
 (s) Judgment of Littledale, J., in Reg. v. The North Midland 
 Railway Company, 2 Railw. Cas. 1. 
 
 (a) Reg. V. Directors of Blackwall Railway, 9 Dowl. 558. 
 (6) Reg, on the prosecution of the Mayor, 8^c. of Maidenhead
 
 Remedies for Strangers against Railway C'ovqjs. 393 
 
 tions which the court will generally admit are where 
 the amendment consists merely in correcting an 
 error in the title or jurat of the affidavit. (6) 
 
 545. 2ndly. It is to be considered 7vhat is neces- 
 sary to ground an application for a mandamus, (c) 
 On moving for the writ the party must make out a 
 reasonable probability of the company being in fault, 
 and of his being entitled to the relief he seeks, (c?) 
 It must likewise appear that the company have been 
 specifically informed of what they are required to do, 
 and have refused compliance, (e) A direct denial is 
 not indeed necessary ; but there should be enough to 
 show that the company withhold compliance, and 
 distinctly determine not to do what is required, (e) 
 
 V. Great Western Railway Company, 5 A. & E. N. S. 597 ; .S. C. 
 1 D. & L. P. C. 874 ; 8 Jur. 107 ; see also post, p. 401. 
 
 (b) lb. 
 
 (c) As to what terms imposed on company having obtained 
 enlarged time for showing cause to rule for mandamus, see Keg, 
 V. Birmingham and Gloucester Railicay Company, 3 Railw. Cas. 
 710. 
 
 (d) Reg. V. Xorth Union Ruiliray Company, 1 Railw. Cas. 
 729 ; S. C. 8 Dowl. P. C. 329 ; Reg. v. Eastern Counties Rail- 
 way Company, 10 A. &c E. 531 ; Reg v. Deptford Pier Company, 
 8 A. & E. 916 ; Reg, v. North Midland Railway Company, 2 
 Railw. Cas. 1. 
 
 (e) Rex V. Brecknock and Abergavenny Canal Company, 3 
 
 A. & E. 222 ; Rex v. Wilts and Berks Canal Company, 3 A. & 
 E. 477 ; Reg, v. Bristol and Exeter Railway Company, 21 Law 
 Journ. Q. B. 106 ; S. C. 4 A. & E. N. S. 162. See also Reg. 
 V. Norwich and Brandon Railway Company, 24 Law Journ. Q. 
 
 B. 24. There a bridge being in the course of construction by 
 a railway company, which, as was alleged, did not comply with 
 the act in certain required particulars as to the height and water- 
 way, Cas to these particulars see S. C. ante, p. 388, n. (g)), notice 
 was given to the company requiring them to construct a bridge of 
 the requisite height, and leaving the requisite width of waterway, 
 
 s 5
 
 39i Remedies for or against Railway Canipanies. 
 
 546. Accordingly, where a party wishes to en- 
 force by mandamus the proper execution of works 
 on the part of a railway company, (the works being 
 such as the company is authorized by its act to do, 
 but in a manner prescribed by such act,) he must, 
 after the work is completed, specifically require the 
 company to perform those things which, according 
 to his view, the act enjoins ; for unless such demand 
 be made after the completion of the work, and com- 
 pliance be refused^ in terms or virtually, a mandamus 
 will not be granted, and this even although the sta- 
 tute has been palpably disobeyed, and though it 
 assigned a limited time for the performance, which 
 time has elapsed. Complaint made while the woi'k 
 is proceeding, though a proper precaution, does not 
 excuse the omission of a specific demand after the 
 completion. (/) 
 
 547. If any condition precedent is imposed by the 
 act constituting the company as a necessary preli- 
 minary to the application, a compliance with it must 
 be shown, A railway act not unusually requires 
 that, where a party calls on the company to cora- 
 
 to which an answer was sent, stating the intention of the company 
 to make the bridge of the required height, but that service of any 
 process in relation to the other matters would be accepted on 
 behalf of the company. The bridge was in fact raised to the proper 
 height, and a cutting at the side of the river was commenced for 
 the purpose of widening it, but, owing to the state of the wea- 
 ther, &c. obliged to be discontinued, though the company, as 
 they stated, intended to go on with it as soon as the weather, &c. 
 permitted ; other letters were sent on the subject to the railway 
 company, but they returned no answer. T. pon a rule for a man- 
 damus, it was held that the above circumstance disclosed a suf- 
 ficient refusal by the company. 
 
 (/) ^^i- '^- Bristol and Exeter Kailicay Compa » i/, ubi supra.
 
 Remedies for Strangers against Railway Comps. 395 
 
 pensate him for damages resulting from the execu- 
 tion of the powers of the act, he shall give a bond 
 for the due prosecution of his complaint, &c. before 
 the company shall be obliged to issue their warrant 
 for the assessment of such compensation, &c. ; or in 
 case the company think lit to issue their warrant 
 without the bond being first entered into, they may 
 require it to be done before the inquiry is com- 
 menced. In this case the giving of the bond is not 
 necessarily a preliminary step to the application for 
 a mandamus ; but, semble, it lies on the company, 
 when they are applied to to issue their warrant, to 
 require a bond, and then, if the other party refuse 
 it, he cannot afterwards ask for a mandamus, (g) 
 
 (o) ^^o- V. North Union Railicay Compa)ty, 1 Railw. Cas. 
 729. See also Reg. v. London and BlackwalL Railivay Com- 
 pany, 24 Law Journ. Q. B. 42. In that case it appeared that 
 the company's act provided that where a jury gave a verdict for 
 the same or a greater sum than should have been offered by the 
 company for the purchase of lands, &c., the costs of such in- 
 quiry should be defrayed by the company, and such costs, &c. 
 should be settled by the sheriff, &c. ; and in case they were not 
 paid within ten days after demand, a power of distress was given 
 to recover them. The act further provided that the costs of title 
 should be borne by the company, and that if the company and 
 the other side could not agree as to the amount, such costs should 
 be ascertained by the Court of Exchequer, who might, on peti- 
 tion of the company, order them to be referred to a master of that 
 court for taxation, &c. ; and that tlie said court might, after tax- 
 ation, order the amount at which the costs were taxed, Sec. to be 
 paid to the proper parties, &c. On a rule for a mandamus to the 
 company, commanding them to pay the costs of an assessment 
 of compensation, and also certain costs of title, such costs not 
 having been settled by the sheriff, &c., or taxed in the Court of 
 Exchequer, it was held that the application was premature, and 
 that a mandamus could not issue, at all events until after the
 
 396 Remedies for or against Railway Companies, 
 
 548. 3rdly. Of the requisites of the writ. The 
 writ, it seems, must state sufficient to show that a 
 mandamus can go. Where, therefore, a party com- 
 plains of the company refusing to make him com- 
 pensation for an injury done under the powers of 
 their act, and of a kind which the act requires them 
 to compensate, the writ, it seems, should state the 
 nature and cause of the injury comiplained of speci- 
 fically, and not simply in the general words of the 
 act, in order to satisfy the court that the case falls 
 within the provisions of the act. (Ji) 
 
 549. In no case can the court infer a fault in the 
 company, but it must be distinctly charged. {%) A 
 mandamus was issued to a company, (i) suggesting 
 that they had been required by a landowner on the 
 line to set out the necessary deviations, and to pro- 
 ceed to complete their line, but that they had refused 
 to purchase the necessary land on a particular part 
 of their line, or to set out the deviations, or to com- 
 plete the railway ; there was no averment that the 
 company had given up their design, or had wilfully 
 exercised any injurious option, or were not proceed- 
 ing with all convenient speed, or that a reasonable 
 time had elapsed without due preparations being 
 made, or that it would not be more advantageous to 
 abide by the original line than to set out a new one ; 
 it was held that the mandamus was insufficient. 
 
 550. So also the mandatory part of the writ ought, 
 it seems, to define specifically what it requires the 
 
 costs had been ascertained and attempted to be levied under the 
 company's acts. 
 
 (h) Reg. V. Eastern Counties Railway Company, 2 Railvv. Cas. 
 746. 
 
 (i) Ibid. 10 A. & E, 531.
 
 I 
 
 Remedies for Strangers against Railway Comps. 397 
 
 company to do, and should not confine itself to a 
 general demand of compliance with the provisions 
 of the act. (k) 
 
 551. 4thly. O^ the return. By way of answer to 
 the writ, the company may deny that the damage 
 has been caused by their works, whereupon an issue 
 will be directed, or they may contend that the injury 
 is not one for which the act pi'ovides compensa- 
 tion. (/) But it is not a good return to say that 
 they cannot do what the act renders it obligatory on 
 them to do, (m) by reason of the cesser of their com- 
 pulsory powers, or of the insufficiency of their funds, 
 or the like, or that they have done something else, 
 which answers the purpose as well, (n) So likewise 
 where, in answer to a mandamus requiring the com- 
 pany, in pursuance of their act, to make ponds or 
 watering places in certain closes intersected by the 
 railway, the defendants made a return stating an in- 
 denture between Sir W. M. Milner, the prosecutor 
 of the writ, and themselves, by which, in considera- 
 tion of his not opposing the alteration of their line, 
 it was agreed that they should pay to Sir W. M. 
 Milner, as for the special damage thereby occasioned 
 to the lands and tenements of the said Sir W, M. 
 Milner, and particularly to a mansion house of his, 
 called Bolton Lodge, the sum of 5000/., to be paid 
 as therein mentioned, and to be exclusive of the 
 
 (A:) Reg. V. Eastern Counties Railway Company, 3 Railw. 
 Cas. 22 ; S.C.2 A.k E. N. S. 569. 
 
 (t) Reg. V. Eastei-n Counties Railway Company, 5 Jur. 365. 
 
 (m) Reg. V. Birmingham and Gloucester Railway Ccmpany, 
 2 Railw. Cas. 701 ; S. C. 2 A. & E. N. S. 47. 
 
 (n) Ibid. ; see also Reg. v. Manchester and Leeds Railway 
 Company, 2 Railw. Cas. 720, 721 ; S. C. 3 A. & E. N. S. 528.
 
 398 Remedies for or against Railway Companies. 
 
 value of the land which the company would require 
 for the purposes of the said railway, and damages 
 which the company might commit either to the said 
 W. M. Milner or his tenants, and which land and 
 damages were to be valued and paid for by the com- 
 pany in the manner provided for by the act, unless 
 the parties to the deed should otherwise agree; and 
 further, that whenever any closes or pieces or par- 
 cels of land or groimd belonging to him should be 
 intersected by the railway, and if the adjoining land 
 belonged to Sir W. M. Milner, and he should re- 
 quire the same, the parts on each side of the railway 
 should be thrown into the adjoining land by remov- 
 ing the fences, drains, gates and stiles, in a sufficient 
 and workmanlike manner ; and that the company 
 would and should, at their own expense, make and 
 complete such fences, drains, gates and stiles, and 
 other conveniences as might be necessary for the 
 redividing of the fields on the same estate, which 
 should be intersected by the railway, and for laying 
 them to the adjoining fields of the said estate for the 
 purpose of convenient occupation ; and the return 
 further stated the payment of the 5000/. by the com- 
 pany, and that Sir W. M. Milner gave notice that 
 in pursuance of the deed he required them to make 
 such fences, drains, gates, stiles and other conve- 
 niences as might be necessary, setting out, as one 
 head of the works he required to be done, the ponds 
 which were the subject of the writ ; all of which the 
 defendants alleged to have been executed, except the 
 ponds; it was held, that the covenant and the proceed- 
 ings under it were no answer to the mandamus, the 
 special damages for which the 5000/. were paid being 
 evidently such as were peculiar to Sir W. M. Milner
 
 Remedies for Strangers against Railway Corwps. 399 
 
 in the alterations of the line, of whatever nature 
 they might be, and not such damages as might hap- 
 pen to any person whose lands were intersected ; 
 and with respect to the other clause in the indenture, 
 it being plain that the word "conveniences" there 
 used did not apply to all things necessary for the 
 occupation of the land, but to all things necessary 
 for the redividing and laying the intersected closes 
 to the adjoining land for the purpose of convenient 
 occupation ; so that the making the watering places 
 did not fall within its provisions, (o) 
 
 552. Where the return contains several distinct 
 heads, part may be quashed upon concilium, and the 
 prosecutor may afterwards have leave to traverse 
 the other parts, {p) if necessary. (<^) 
 
 55S. 3. Of Certiorari. Under this head it is 
 proposed to consider, 1st, w/^ew a writ of certiorari 
 lies; ^dly, the steps to he taken to obtain it; and 
 lastly, how it may be taken awaij, and what are the 
 effects of its being so taken away. 
 
 oo-i. 1st. Where the proceedings incidental to 
 
 (o^ Tieg. V. Yofk and North Midland Eaiiway Company, 23 
 Law Journ. Q. B. 277. 
 
 (p) ^^i' V. North Midland, Railway Company, 11 A. & E. 
 955, n. (6) ; S.C.2 Railw. Cas. 1 . 
 
 (5) As to costs, see Reg v. Eastern Counties Railway Com- 
 pany, 2 A. & E. N. S. 578 ; Reg. v. Sheriff of Middlesex, 22 
 Law Journ. Q. B. 14 ; S. C. 3 Railw. Cas. 396 ; and as to when 
 error lies on award of peremptory mandamus, see Reg. v. Man- 
 chester and Leeds Railway Company, ubi supra. See also Reg, 
 V. Bingham, 4 A. & E. N. S. 877, where costs of mandamus to 
 magistrate to hear compensation case refused, it not being shown 
 what had become of the mandamus. Pauperised party ordered 
 to pay costs; Reg. v. Blackicall Railway Company, 4 Jurist, 
 859.
 
 400 Remedies for or against Railway Companies. 
 
 the assessment of the compensation under the railway- 
 act are irregular, and a party in consequence wishes 
 to bring them up before the court in order to quash 
 them, a writ of certiorari is the proper remedy for 
 that purpose. The court has a discretion as to the 
 granting the writ, notwithstanding there are defects 
 on the face of the proceedings which it is sought to 
 remove, (r) There are accordingly various circum- 
 stances under which the court may think fit to refuse 
 the application. The conduct, for instance, of the 
 party applying may be such as to preclude him from 
 obtaining it; as where a party seeks to take advan- 
 tage of a defect on the face of the inquisition, which 
 arises from his having himself requested that the 
 provisions of the act should be deviated from ; (s) 
 or again, where he has waived the objection on 
 which he seeks afterwards to rely, (t) So, where 
 substantial justice has been done notwithstanding 
 all defects in the proceedings, that might be a cir- 
 cumstance to convince the court that no writ ought 
 to issue ; as for instance, if it were to appear that 
 tlie party throughout has really and substantially 
 had every advantage in the course of the proceed- 
 ings that the statute intended to secure him, and 
 that the sum awarded is as much as he could rea- 
 sonably expect, and that at any rate it has not been 
 less on account of the defects pointed out. («) 
 
 (r) Reg. V. Manchester and Leeds Railway Company, 8 A. & 
 E. 426. 
 
 (s) Judgment of Lord Denman in Reg. v. Manchester and 
 Leeds Railway Company, 8 A. & E. 426 ; Reg. v. Committee- 
 men for South Holland Drainage, ibid. 429. 
 
 (0 Ibid. 
 
 (w) Reg. V. Manchester and Leeds Railway Company, 8 A. 6c 
 E. 413.
 
 Remedies for Strangers against Railway Comps. 401 
 
 555. So, likewise, a writ of certiorari lies where 
 a party seeks to have a coroner's inquest against a 
 company returned into the Court of Queen's Bench, 
 in order to take advantage of the forfeiture conse- 
 quent on the finding of the jury. When the inqui- 
 sition is returned, the party interested must then 
 issue process to compel the appearance of the com- 
 pany. («') If they appear, they may plead or demur 
 to the inquisition in the same order and form as in 
 cases of indictments, {x) 
 
 556. It is an almost invariable rule that where a 
 party fails in an application for a certiorari by rea- 
 son of his not coming at first fully prepared with a 
 proper case, he cannot be allowed to renew his ap- 
 plication with an amended case. (?/) 
 
 557. 2ndly. We have to consider what is neces- 
 sary in order to obtain a certiorari, (z) The party 
 applying must then swear positively to the exist- 
 ence of defects in the pi'oceedings he is seeking to 
 impugn, and also specify and point out the nature 
 of those defects. The principle by which the court 
 are guided in issuing such writs, is not to issue them 
 
 (w) Quaere, whether distress infinite would not be the proper 
 process in this case. 
 
 (x) Jervis on Coroners, p. 288. 
 
 (y) See ante, p. 400, n. (k). 
 
 (s) As to stage of proceedings at which objection to inquisi- 
 tion may be taken, see Rex v. Trustees of Norwich and Watton 
 Road, 5 A. & E. 563 ; that rule to show cause why certiorari 
 should not issue is properly directed to clerk of company, though 
 record of inquisition in the custody of clerk of the peace, see Reg, 
 V. Manchester and Leeds Railway Company, 1 P. & D. 164; 
 objections not in general given effect to, when made by party 
 setting the proceedings in motion, see Reg. v. Trustees of Swan- 
 sea Harbour, 8 A. & E. 439.
 
 402 Remedies for or against Railway Companies. 
 
 simply on the ground that there may probably be 
 defects, but they must first see clearly that facts 
 do exist which will bring the defects before them, (a) 
 If, therefore, the party rests his case on the grounds 
 of the statute not authorizing the proceedings, he 
 should state how it fails to do so, so as to make out 
 clearly the want of authority, (b) If, for instance, 
 he goes on the ground of the lands forming the sub- 
 ject of the inquisition not being properly described, 
 or being omitted in the schedule, he must go on and 
 negative the justices having certified that it arose 
 from mistake, (fc) 
 
 558. Upon a like principle, where the objection is 
 to the form of the inquisition, (6) the party should 
 set out the inquisition, or he should swear that he 
 cannot procure a copy and that he is informed of 
 and believes the facts raising the objections. 
 
 559. Srdly. Of the taking away of the writ of cer- 
 tiorari and of the effects incidental thereto. In 
 general, a writ of certiorari can only be taken away 
 by the express words of a statute, though it is 
 enough for this purpose if the express provisions of 
 one statute on the subject are embodied in a follow- 
 ing one by reference, (c) 
 
 560. Of the effect of the taking away of the 
 certiorari. The effect of a clause of the above na- 
 ture is, it seems, to take away the writ in all cases 
 where there is substantially jurisdiction. Accord- 
 ingly, where a proceeding is distinctly originated 
 
 (a) Judgment of Lord Denman, C. J., in Reg. v. Manchester- 
 and Leeds Railway Company, 8 A. & E. 413. 
 
 (b) lb. 
 
 (c) Rex V. Jitslices of West Riding of Yorkshire, 1 A. & E. 
 572 ; Rex v. Fell, 1 B. & Ad. 380.
 
 Remedies for Strangers against Railway Comps. 403 
 
 within the act, a mere subsequent irregularity can- 
 not affect it so as to prevent the operation of the 
 clause, or authorize the court to entertain a motion 
 for a certiorari, (d) It is the same where the juris- 
 diction substantially exists, but has been exceeded 
 in some trifling respects ; as, for instance, where the 
 objections to the company's proceedings were, 1st, 
 that they had deviated from the parliamentary line 
 to a greater extent than their act permitted ; 2nd, 
 that they had made the railway through a piece of 
 land not included in the book of reference, and not 
 certified to have been omitted by mistake; and Sdly, 
 that for aught that appeared on the face of the in- 
 quisition to the contrary, such inquisition was taken 
 by a common instead of a special jury, damage to a 
 mansion being in question. The party's proper 
 
 (d) Reg. V. Sheffield, Ashton-under-Lyne and Manchester 
 Railway Company, 1 Railw. Cas. 544; S. C. 11 A. & E. 194 ; 
 see ante, p. 202. So where a railway act provided that if an 
 agreement for compensation for damages incurred ia the execu- 
 tion of the act could not be made, the company should issue 
 their warrant to the sheriff to summon a jury, &c., who should, 
 upon their oaths, enquire of, assess and give a verdict for the 
 sum of money to be paid by way of compensation for the 
 damages ; no form of warrant was given in the act, but the 
 act contained the usual clause taking away the certiorari ; and 
 the court issued their warrant to the sheriff requiring the latter to 
 summon a jury for the purpose of assessing, &c. the sum of 
 money {if any) to be paid to A. B. by way of compensation, 
 and the jury upon the inquisition found that A. B. had not sus- 
 tained any damage, the court refused a certiorari, though they 
 seem to have thought that it would have been better if the- 
 words '^ if any" had been omitted in the warrant; Reg. v. 
 Lancaster and Preston Junction Railway Cumjmny, 23 Law 
 Journ. Q. B. 84.
 
 404 Remedies for or against Kailway Companies. 
 
 remedy in such a case, it would seem, is by an ac- 
 tion of trespass, (e) 
 
 561 . But where there is a total want of jurisdiction, 
 and the company has chosen to proceed in defiance 
 of the act, there it seems the clause is inapplicable 
 and the writ is not taken away. (/) 
 
 5Q2. Where a statute does not allow the removal 
 of proceedings by certiorari, the court cannot in- 
 directly bring them under review by mandamus, {g) 
 
 II. — Of Remedies in Equity. 
 
 563. Under this head of our subject it is proposed 
 to consider three points; 1st, what suits 2i stranger 
 may have against the company, and herein more 
 particularly of the granting an injunction against the 
 company ; 2dly, who are the proper parties to such 
 suits, and Sdly, the frame of the pleadings, SfC. 
 
 564. Suits against company. Under the first 
 head is to be considered, 1st, the relief (A) that may 
 be had against a railway company as such, and i7i 
 regard of its peculiar nature and constitution; 2d, the 
 relief that may be had against a railway company, 
 grounded not so much on its nature and constitution 
 as on the general nature of the transaction. 
 
 565. The general principle by which a court of 
 
 (e) Beg. V. Bristol and Exeter Railway Company, 2 Railw. 
 Cas. 99 ; S. C. 11 A. & E. 202, n. 
 
 (/) Judgment of Patteson, J. in Reg. v, Sheffield, Ashton- 
 imder-hyne and Manchester Railway Company, ubi supra. 
 
 (g) Rex V. Justices of West Riding of Yorkshire, 1 A. & E. 
 563. 
 
 (/i) As to interference of court of equity on ground of insuffi- 
 ciency of the company's funds, &c., see ante, p. 127 et seq., and 
 the cases there cited.
 
 Remedies for Strangers against Raibvay Comps. 405 
 
 equity is guided in administering relief against the 
 acts of a railway company is this, viz., that where a 
 railway company go beyond the powers which the 
 legislature has given them, and in a mistaken exer- 
 cise of those powers interfere with the property of 
 individuals, it is the duty of the court to interpose 
 for the purpose of strictly keeping the company 
 within those limits which the legislature has thought 
 proper to prescribe for the exercise of their 
 powers. (J) Accordingly, if a railway company 
 enter upon land and take possession of it without 
 first settling and paying the price, the owner may 
 file a bill in equity for relief, (k) So, if they at- 
 tempt to take land for a purpose which their act 
 does not authorize. {I) So, if they actually inter- 
 fere or threaten to interfere with any road, highway 
 or other avenue of communication without first 
 setting out a temporary substitute according to the 
 provisions of their act ; or actually obstruct or 
 threaten to obstruct a navigable canal, brook or 
 mill stream to a greater extent than what their act 
 authorizes or than is necessary for the construction 
 of the railway, (m) and this either temporarily or 
 absolutely. So if a company are guilty of an abuse 
 
 (i) See Webb v. Manchester aiid Leeds Railway Company, 4 
 My. & Cr. 120 ; S. C. 1 Railw. Cas, 576 ; Bell v. Hull and 
 Selby Railway Company, 1 Railw. Cas. 636 ; Kemp v. Brighton 
 Railway Company, ibid. 495 ; River Dim Navigation Company 
 V. North Midland Railway Company, ibid. 153 ; Agar v. Regent's 
 Canal Company, Cooper's Rep. 77. 
 
 (k) See ante, p. 172. 
 
 (/) Webb V. Manchester and Leeds Railway Company, ubi 
 supra. 
 
 (m) See Manser v. Northern and Eastern Counties Railway
 
 406 Remedies for or against Railway Companies. 
 
 of the powers given tliem by their act, and this to 
 the detriment of the traffic of another line, such, 
 for instance, as using for the general purposes of 
 their traffic a branch line communicating with the 
 latter line, which they have only a right to use for 
 a limited purpose. («) 
 
 566. It is no ground for the interposition of a 
 court of equity that the tribunal which, under the 
 company's act, is entrusted with the duty of ascer- 
 taining what satisfaction is to be paid to the land- 
 owners 8:c., is not so constituted as to be likely to 
 come to a just conclusion. It being the legislature 
 that has given the jurisdiction, it is the legislature, 
 and the legislature alone, that can apply a remedy if 
 any inconvenience arise from the legal exercise of 
 that jurisdiction, (o) 
 
 567. Upon the filing of the party's bill the court 
 in general, under the above circumstances, grants 
 an injunction to stay the company from taking any 
 further proceedings to the prejudice of the com- 
 plainant's property. But this, of course, can only 
 be in a case where the court is very clearly of opi- 
 nion that the company are exceeding the powers 
 which the act has given them, (^p) In a case of ur- 
 
 Company, 2 Railw. Cas. 380 ; Illingworth v. Manchester and 
 Leeds Eailway Company, 2 Railw. Cas. 207. 
 
 (n) See North Union Railway Company v. Bolton and Preston 
 Railway Company, 3 Railw. Cas. 345. 
 
 (o) Barnsley Canal Company v. Twibell, 3 Railw. Cas. 471 ; 
 S. C. 7 Beav. 19. 
 
 (p) River Dun Navigation Company v. North Midland Rail- 
 way Company, 1 Railw. Cas. 154, 155, judgment of Lord Chan- 
 cellor.
 
 Remedies for Strangers against Railway Comps. 407 
 
 gency such an injunction may be moved for ex parte 
 even after the defendants have appeared, (q) 
 
 568. In general it is no objection to the issuing of 
 the injunction, that irreparable mischief is not shown 
 to result from the proceeding of the company against 
 which the party prays by his bill to be relieved, (j) 
 But where the company are lawfully in possession of 
 property, there it seems a case must be made of 
 sudden grievous injury to the inheritance to entitle 
 the reversioner to an injunction, (s) Where, indeed, 
 it is shown that irreparable mischief is likely to 
 result from permitting the company to go on with 
 what they are about, that may be a ground for an 
 injunction, even where the question as to the extent 
 of the company's power is doubtful, (t) 
 
 569. Laches, or an express or implied acquiesence 
 in the proceedings of the company, which induces 
 a change in the company's position, may have the 
 effect of depriving a party of his remedy by in- 
 junction, (ii) 
 
 {q) Bell V. Hull and Selbij Railway Company, 1 Railw. Cas. 
 623, 624, and cases there cited. 
 
 (r) River Dun Navigation Corn-puny v. North Midland Rail- 
 way Company, 1 Railw. Cas. 135. 
 
 (s) Mouchet V. Great Western Railway Company, 1 Railw. 
 Cas. 567. 
 
 (t) See judgment of Vice-Ciiancelloi- in Bell v. Hull and 
 Selhy Railway Company, 1 Railw. Cas. 632. 
 
 (w) Iltingworth v. Mancheiter and Leeds Railway Company, 
 2 Railw. Cas. 187 ; Attorney-General v. Manchester and Leeds 
 Railway Compairy, 1 Railw. Cas. 436 ; Blukemore v. Glamor- 
 ganshire Canal Navigation, 1 ]My. & K. 154 ; Innocent v. North 
 Midland Railway Company, 1 Railw. Cas. 256 ; Gordon v. 
 Cheltenham and Great Western Railway Company, 2 Railw. Cas. 
 800, 872; 6'. C. 5 Beav. 229 ; London and Brighton Railway
 
 408 Remedies for or against Railway Companies. 
 
 .570. In general, on an application for an injunc- 
 tion, the court acts only prospectively and with a 
 view to keep matters in statu quo ; though, where 
 the circumstances render it requisite, it would seem 
 to be competent for the court to grant an injunction 
 restraining the company from allowing a thing to 
 continue, and thereby indirectly compelling them to 
 do some positive act for its removal, [x) Acquies- 
 cence, however, by the complainant in the acts of 
 the company against which he seeks relief, may 
 prevent the court from granting an injunction of the 
 latter description, (y) 
 
 571. Sometimes the court is content to withhold 
 an injunction, and in lieu thereof to accept of the 
 company's undertaking touching their future pro- 
 ceedings, where this latter course promises to secure 
 to the complainant all the substantial results of the 
 former, (z) An undertaking thus entered into with 
 
 Company v. Blake, 2 Railw. Cas. 322 ; Company of Proprietors 
 of Northam Bridge, 8^c. v. London and Southampton Railway 
 Company, 1 Railw. Cas. 681 ; see also Greenhalgh v. Manchester 
 and Birmingham Railway Company, 3 M. & W. 784. 
 
 (i) Spencer v. The London and Birmingham Railway Com- 
 pany, 1 Railw. Cas. 170 ; Lane\. Newdigate, 10 Ves. 192 ; see 
 d\%o Attorney-Generalv .Manchester and Leeds Railway Company , 
 1 Railw. Cas. 451 ; but see Blakemore v. Glamorganshire Canal 
 Company, 1 Myl. & K. 184. In the Great North of England, 
 8^c. Railway Company v. Clarence Railway Company, 1 Coll. 
 507, an injunction was granted, in effect compelling a railway 
 company to pull down walls which they had built in order to 
 prevent another railway company from crossing their line. 
 
 (y) See Attorney -General v. Manchester and Leeds Railway 
 Company, ubi supra. 
 
 (s) Attorney -General v. Manchester and Leeds Railway Com- 
 pany, 1 Railw. Cas. 451 ; Jones v. Great Westerii Railway Com- 
 pany, 1 Railw. Cas. 684; Proprietors of Noriham, Bridge, S^c.v
 
 Remedies for Strangers against Railway Comps. 409 
 
 a court of equity is equivalent to and lias the effect 
 of an injunction so far that any infringement thereof 
 may be made the subject of an application to the 
 court. («) Where, in violation of an undertaking 
 thus entered into, the company apply to parliament 
 for leave to bring in a bill which may relieve them 
 from the necessity of a compliance with such under- 
 taking, still if the House of Commons entertain the 
 bill, the court has no jurisdiction to restrain the 
 company from further soliciting such bill, which is 
 no longer to be viewed as the proceeding of the pe- 
 titioners, but as that of the legislature. (6) 
 
 5*12. Where the extent of the powers given 
 by the act is doubtful, and involves a question 
 of legal right, the usual course pursued by a 
 court of equity under such circumstances is to 
 put the parties in a situation to try as quickly as 
 possible the legal right, and in the mean time to 
 protect the property to be affected, until the legal 
 right be ascertained, (c) Or if the case be one of 
 
 Southampton Railway Company , 1 Kailw. Cas. 653. And where 
 it appeared that though the company had acted illegally in enter- 
 ing on plantiff's land, yet that it was necessary that immediate 
 steps should be taken to ensure the public safety, the court re- 
 fused an injunction, but with the consent of the counsel for the 
 company directed the latter to pay into court the probable value 
 of the land ; Tower v. Eastern Counties Railway Company, 3 
 Railw, Cas. 374. 
 
 (a) The London and Birmingham Railway Company v. Grand 
 Junction Canal Company, 1 Railw. Cas. 224, judgment of Mas- 
 ter of Rolls. 
 
 (6) Attorney -General v. The Manchester and Leeds Railway 
 Company, 1 Railw. Cas. 436. 
 
 (c^ Kemp V. London and Brighton Railway Company, 1 
 Railw. Cas. 504; Bell v. Hull and Selby Railway Company, 1 
 Railw. Cas. 616; Gordon v. Cheltenham Railway Company, 5 
 
 T — Z
 
 410 Remedies for or against Raihvay Companies. 
 
 extreme doubt, or the balance of inconvenience pre- 
 ponderates greatly on the side of the company, the 
 court may suspend the injunction till the right is 
 determined at law. (J) 
 
 573. After an injunction is granted on any of the 
 grounds above suggested, it is open subsequently to 
 be dealt with by the court, according to the merits of 
 the case, and so as to do substantial justice between 
 the parties. Where therefore an injunction was 
 granted, restraining a company from continuing to 
 stop up a road, it appearing that the road would be 
 restored in a shorter period of time by permitting 
 the company to complete their work, than by en- 
 forcing the terms of the order, the injunction was, 
 with the assent of the plaintiffs, suspended for three 
 weeks, to afford time accordingly, (e) And if the 
 court clearly sees that they can secure to the plain- 
 tiff all the benefit to which he is entitled, without 
 inflicting on the company so much injury as to con- 
 tinue the injunction, they are ready to listen to an 
 
 Beav. 240 ; Attorney-Genera! v. Eastern Counties and Northern 
 and Eastern Counties Railway Companies, 2 Railw. Cas. 823. 
 As to the nature of the order that a court of equity will make for 
 trying the right at law, see Bell v. Hull and Selby Railway Com- 
 pany, ubi supra; Cory v. Norwich and Yurmmith Railicay 
 Company, 3 Hare, 593 ; Kemp v. London and Brighton Railwat/ 
 Company, ubi supra; Attorney -General v. Eastern Counties and 
 Northern and Eastern Counties Railway Company, ubi supra. 
 
 (d) See Gordon v. Cheltenham Railway Company, 5 Beav. 
 240; Cory v. Norwich and Yarmouth Railway Company, 3 
 Hare, 593. See also Clarence Railway Company v. Great North 
 of England, Clarence and Hartlepool Junction Railway Com- 
 pany, 2 Railw. Cas. 763 ; Great North of England, Clarence 
 and Hartlepool Railwaif Company v. Claretice Railwaii Company, 
 1 Coll. 507. 
 
 ■ (e) Spencer v. The London and Birmingham Railway Com- 
 pany, 1 Railw. Cas. 159.
 
 Remedies for Strangers against Railway Comps. 411 
 
 application for dealing with the injunction in such a 
 manner as best to reconcile the interests of both 
 parties. But before tlie court can thus interfere 
 with a plaintiff's equitable right, evidence must be 
 adduced to show that injury is likely to be caused to 
 the company by the postponement of their proceed- 
 ings, and means suggested by which the court can be 
 sure that they shall not, in permitting the company 
 to go on, subject the plaintiff to inconvenience and 
 danger. (/) 
 
 574. Even although there may have been a clear 
 infraction of the law on the part of the company, and 
 that without any favourable circumstances, still, if 
 no case of practical inconvenience is made out, the 
 court will not necessarily feel itself bound to continue 
 an injunction, which has been granted ex parte, but 
 will exercise its discretion according to the parti- 
 cular circumstances of the case, and endeavour to 
 do substantial justice to one party without imposing 
 unnecessary hardships on the other, especially in a 
 case where the legal tribunals are open, {g) 
 
 (/) Judgment of Lord Chancellor in Be'/ v. Bull and Selby 
 Railway Company, 1 Railw. Cas. 637. 
 
 (g') Attorney -Genera I v. Eastern Counties Railway Company, 
 3 Railw. Cas. 337 ; S. C. 7 Jur. 806, judgment of Vice-Chan- 
 cellor. In that case an information was filed at the relation of 
 the trustees of a turnpike road against a railway company in 
 order to compel them to remove a temporary bridge, which had 
 been erected for the purpose of conveying spoil earth over the 
 road, or to compel them to set out a new road ; and it was held, 
 on motion to dissolve an injunction granted ex parte, that the 
 operation of the injunction should, on certain terms, be sus- 
 pended for seven weeks or until further order, no case of prac- 
 tical inconvenience having been made out, although there had 
 been a clear infraction of the law. 
 T — z 2
 
 412 Remedies for or against Railway Companies. 
 
 575. Independently of the question of merits, if 
 it subsequently turn out that an injunction has been 
 obtained by means of misrepresentation or conceal- 
 ment on the part of the complainant, he can have no 
 benefit of it ; but it is liable to be discharged with 
 costs. (//) The application, however, for this pur- 
 pose must be made as speedily as a party can ; a 
 motion accordingly for dissolving an injunction on 
 the above grounds cannot be supported after a period 
 of several months has elapsed before notice of the 
 motion is given, the company having all the time in 
 their power the means of knowing on what grounds 
 the injunction was granted, (i) Neither will the 
 question, whether there has been such misrepresen- 
 tation or concealment, be taken into consideration 
 on appeal from an order made by the court in which 
 the injunction was granted, and by which order the 
 injunction was continued, and the costs reserved. (?) 
 
 576. A second case, where a court of equity is 
 accustomed to interfere for the purpose of relieving 
 against the acts of a railway company, is where the 
 company are endeavouring to exercise the powers 
 given them by their act in violation of the terms of 
 an arrangement, upon the faith of which they were 
 suffered to obtain those very powers. Suppose, for 
 instance, that as the price of a party's withdrawing 
 his opposition to the passing of their act, the under- 
 
 (Ji) Bell V. Hull and Selby Railway Company, 1 Railw. Cas. 
 638; Semple v. London and Birmingham Railway Company, 1 
 Railw. Cas. 494 ; lUingworlh v. Manchester and Leeds Railway 
 Company, 2 Railw. Cas. 194 ; Wnrburton v. Blackwall Railway 
 Company, 1 Railw. Cas. 558. 
 
 (i) Bell V. Hull and Selby Railway Company, 1 Railw. Cas. 
 638.
 
 Remedies fur Strangers against Railway Comps. 413 
 
 takers agree with such party to give him a certain 
 price for his property, or to allow him a certain 
 amount of compensation for the injuries likely to 
 result thereto from the construction of the railway, 
 or the like, and that the company on the act passing 
 attempt to take possession of, or otherwise deal 
 with, the party's land under the compulsory powers 
 of such act, and without fulfilling the terms of the 
 supposed arrangement, the other party may file his 
 bill to be relieved against the company, and to stay 
 them from proceeding to interfere with his property 
 otherwise than on the stipulated terms, (k) 
 
 577. In a case of this nature, a party is in general 
 entitled to an injunction upon filing his bill ; though 
 he may lose this right by an express or implied ac- 
 quiescence in the proceedings of the company ; as if 
 with a knowledge of his alleged right he lies by, 
 and leads the company by his conduct to proceed 
 upon an understanding that they are at liberty to do 
 so without being affected by the prior agreement.(^) 
 
 578. The grounds by which a court of equity is 
 guided in administering the second species of relief, 
 viz., that resting on the nature of the transaction, 
 would seem to be the same in the case of railway 
 companies as of ordinary persons. Accordingly, if 
 a plain case of nuisance be established against a 
 company, a court of equity would in general grant 
 an injunction at once to restrain its further conti- 
 nuance; as, for instance, where a company depo- 
 sited a quantity of clay on a road leading to a party's 
 wharf, and thereby created a material obstruction 
 
 (k) See ante, p. 162, et seq., and cases there cited. 
 (/) Greehalghv. Manchester and Birmingham Railway Com- 
 pany, 3 My. & Cr. 784.
 
 414 Remedies for or against Railway Companies. 
 
 to the entrance of the wharf, there being grounds 
 at the same time for suspecting that the company 
 intended to bring a much larger quantity, of which 
 that actually deposited constituted but a small por- 
 tion, {m) So if a railway company, in making their 
 excavations, were to proceed in so careless a man- 
 ner as threatened to endanger the adjoining pro- 
 perty, if they were suflTered to proceed, a court of 
 equity would, it seems, interpose to restrain them 
 from going on. (?<) 
 
 579. In cases of such a nature the injured party 
 has a right to apply immediately for an injunction 
 ex parte, and is not bound to wait and see with 
 what degree of celerity or tardiness the cause of in- 
 jury is removed, {o) Though, if such injunction 
 turn out to be obtained by misrepresentation or con- 
 cealment on his part, he can have no benefit of it ; 
 but it is liable to be discharged with costs, (o) 
 
 580. Where the fact of the nuisance is not clearly 
 established upon the affidavits, or the legal right is 
 otherwise doubtful, the court in general is governed 
 by the consideration of inconvenience, and as this 
 preponderates on the one side or the other, grants 
 or refuses the injunction accordingly. If the giving 
 to the one party permission to do the acts com- 
 plained of would be attended with irreparable or 
 
 (m) Semple v. London and Birmingham Railway Company, 1 
 Railw. Cas. 493 ; S.C.9 Sim. 209. 
 
 (n) See judgment of Vice-Chancellor in Warburton v. Lon- 
 don and Blackwall liailway Company, 1 Railw. Cas. 558. As 
 to injunction against railway company to secure possession of 
 temporary easement upon their land, see ante, p. 367, n. (g). 
 
 (o) Semple v. London and Birmingham Railway Company, 1 
 Railw. Cas. 489.
 
 Remedies for Strangers against Railwaij Cumps. 415 
 
 very serious mischief to tlie other, the injunction is 
 more commonly granted, (p) But if on the other 
 hand, there is a balance of inconvenience, or the in- 
 convenience is clearly greater on the side of the 
 company, then as a general rule the court requires 
 the party to establish his right at law before grant- 
 ing an injunction, though after the right is thus 
 established, it would then interfere to enjoin any 
 further invasion thereof, (q) This rule, requiring 
 the party in the first instance to establish his right 
 at law, applies more especially in those cases where 
 the complainant himself has by his delay prevented 
 the legal right being ascertained as it ought to have 
 been, (r) Although a party cannot maintain an ac- 
 tion against a company for an alleged nuisance, &c., 
 still if it be a case where, as against ordinary per- 
 sons, he is entitled to recover penalties de die in 
 
 (p) Judgment of Vice-Chancellor in Cory v. Norwich aiid 
 Yarmnuth Railway Company, 3 Hare, 600, 601. 
 
 (9) Sempley. London and Birmingham Railway Company, 1 
 Railw. Cas. 120 ; Cory v. Norwich and Yarmouth Railway 
 Company, 3 Hare, 593. As to the nature of the nuisance in the 
 former of ihe two cases, see ante, p. 178. In the latter case the 
 alleged wrong consisted in the railway company conveying pas- 
 sengers, &c. to and from their terminus, which was within the 
 limits of a ferry over the river Bure, by means of a canal com- 
 municating with the river, across the same from and to Buck 
 Quay in Great Yarmouth, the effect of which was to deprive the 
 plaintiff, the owner of the ferry, of a great portion of the traffic 
 over a bridge that had been substituted by an act of parliament 
 for the ancient ferry, and on which the act empowered him to 
 take tolls. The affidavits raised various questions of fact as to 
 whether the plaintiff had a right to the ferry, &c., and also a 
 question of lav?. 
 
 (r) See Semple v. London and Birmingham Railway Com- 
 pany, 1 Railw. Cas. ubi supra.
 
 416 Remedies for or against Railway Companies, 
 
 diem for the infringenjent of his right, a court of 
 equity would, it seems, protect him by injunction 
 from such infringement, (s) Or if the case were not 
 one in which the court thought fit to grant an in- 
 junction at once, still it would not leave the party 
 simply to proceed by distress, in order that his legal 
 right might be tried by replevin, but would direct 
 an issue to try such right, and require the defendants 
 not to raise any objection at law, on the ground that 
 the alleged wrong was done by a corporation, (i) 
 
 581. So likewise in cases of trespass under 
 colour of title, it has been laid down that where the 
 mischief apprehended is irreparable, a court of 
 equity will exercise its jurisdiction to grant an 
 injunction, and, whether the mischief be irreparable 
 or not, it will by decree, if not by order upon 
 motion, extend the jurisdiction of preventive justice 
 to all cases of trespass in which damages would be 
 an inadequate and uncertain remedy, and the protec- 
 tion of the right in specie is the only mode of 
 doing complete justice, (m) 
 
 582. Of relief on contracts. Whatever relief it is 
 competent for a court of equity to administer in 
 regard of contracts in general, it may equally afford 
 upon a contract concluded by a railway company. 
 A party therefore who complains of being defrauded 
 
 (s) Cory V. Noruich and Yarmouth Railway Company, 3 
 Hare, 593. 
 
 (i) Cory V. Norwich and Yarmouth Railway Companv, 3 
 Hare, 593. This supposes that the court can see plainly what 
 the issue is. 
 
 (it) See judgment of Wigram, Vice-Chancellor, in North Union 
 Junction Railway Company v. Bolton and Preston Railway Com- 
 pany, 3 Railw. Cas. 345.
 
 Remedies for Strangers against Railway Comps. 417 
 
 or oppressed by a company in regard of a contract 
 entered into with them, may file a bill for relief 
 against such fraud or oppression. So likewise a 
 bill lies against a company for the specific perform- 
 ance of an agreement for the purchase of land, 
 &c., (x) or for the taking of an account, which, from 
 the character of the transaction, and the nature of 
 the investigation which it renders necessary, the 
 machinery of a court of common law is clearly ina- 
 dequate to entertain, (y) But where a contract is of 
 such a nature that a court of equity cannot have 
 jurisdiction over the entire contract by way of direct- 
 ing a specific performance, a party cannot sustain a 
 prayer for relief, which supposes an assumption by 
 the company of such a jurisdiction over any part of 
 that contract. (?/) 
 
 583. Next of the parties to a suit against the 
 company. The general rule in equity, " that all 
 parties materially interested in the subject of the 
 suit ought to be made parties," applies as much to a 
 suit against a company as to any other. A party 
 cannot therefore, it should seem, complain in his 
 own individual right of an alleged injury to the 
 navigation of a river in which he is interested in ex- 
 tent perhaps more than others, but in right only as 
 one of the public, (z) 
 
 584. The rule does not apply, where one party 
 has a peculiar and special interest in the subject of 
 
 (a) See ante, and see Stnrerv. Great Wester7i Railvxiy Com- 
 pany, 3 Railw. Cas. 106; S. C. 2 Y. & Coll, N. R. 48. 
 
 (i/) Ranger v. Great Western Railway Company, 1 Railw. 
 Cas. 1. 
 
 (s) Illingworih v. Manchester and Leeds Railway Company, 
 2 Railw. Cas. 209.
 
 418 Remedies for or against Railway Companies. 
 
 the suit distinct from that of any other party ; but 
 in this case such party may complain in his own 
 right of any injury to that interest. One therefore 
 who suffers a special damage from (a) the stopping 
 up of a public thoroughfare by the company, may 
 sustain a bill for relief without making the attorney- 
 general a party. 
 
 Upon a like principle, where a party was lessee 
 of a wharf and premises of which the Regent's Canal 
 Company were the proprietors, (6) and had a right 
 with other occupiers of adjoining wharfs to the use 
 of a road which was the property of the company ; 
 it was held that he might sustain a bill against a 
 railway company to restrain them from obstructing 
 the road and thereby impeding the entrance to his 
 wharf, and that neither the canal company nor the 
 other occupiers need be made parties, nor the plain- 
 tiff's assignees, though he was an uncertificated 
 bankrupt. 
 
 And where a lessor agrees with a railway com- 
 pany for the sale of the demised premises, and is 
 subsequently necessitated to file a bill for a specific 
 performance of the contract and an injunction against 
 the company, tlie tenant of the premises thus con- 
 tracted to be sold is not a necessary party, (c) 
 
 585. Where other parties besides the company 
 have a substantial interest in the relief prayed by 
 the bill adverse to that of the plaintiff, it would in 
 
 (a) Spencer v. London and Birmingham Railway Company, 
 1 Railw. Cas. 159. 
 
 (ft) Semple v. London and Birmingham Railway Company, 
 9 Sim. 209 : S. C. 1 Railw. Cas. 480. 
 
 (c) Robertson V. Great \l estern Railway Company, 1 Railw. 
 Cas. 459.
 
 Remedies for Strangers against Railway Comps. 419 
 
 general be proper to join them as co-defendants, (c/) 
 But this cannot be taken to apply to parties who, 
 although once connected with the transaction out of 
 which the suit arises, have ceased to have any sub- 
 stantial interest therein. For instance, where an 
 agreement is made with the promoters of one line of 
 railway, but is adopted by the provisional commit- 
 tee of a competing line that ultimately succeeds ; in 
 seeking to give effect to such agreement against the 
 company, (the representatives of the latter body,) 
 it would seem unnecessary to make the promoters 
 of the rejected line parties to the bill for that pur- 
 pose, (e) 
 
 586. Where parties have an interest in the subject 
 of a suit on the same side as tliat of the plaintiff, but 
 they refuse to be made plaintiffs, they may properly 
 be joined as co-defendants, {f) 
 
 587. The general rule, that parties having no 
 interest in a suit cannot be made parties to it, does 
 not apply to a suit against a company for a disco- 
 very, for in this one or more of the officers of the 
 company may be joined as co-defendants ; and this, 
 though they have no interest, and may be examined 
 as witnesses, (^g) 
 
 588. Lastly, as to theymmeof the bill. The bill 
 must rest the plaintiff's claim for relief on the right 
 grounds, for a party cannot have a relief different 
 
 {(I) See ante, p. 376, n. {d). 
 
 (e) Stanley v. Chester and Birkenhead Euiiway Company, 1 
 Railw. Cas. 58, judgment of Vice-Chancellor.i 
 
 (/) See Ranger v. Great Wetter n Railway Company, 1 Railw. 
 Cas. 1. 
 
 (g) Gibhuns V. Waterloo Bridge Company, 5 Price, 491 ; see 
 also ante, p. 376.
 
 420 Remedies for or against Railway Companies, 
 
 from the case made out by his bill. Distinct and 
 separate matters ought not to be joined together in 
 the same bill. As for instance, where a party enters 
 into several contracts with a company, wholly un- 
 connected with and independent of each other, he 
 cannot, it should seem, embody them in one bill, 
 though on all he may be entitled to relief against the 
 company. But where the several matters are sub- 
 stantially connected together, either by reason of 
 some natural dependence and relation between each 
 other, or from the mode of dealing which the parties 
 have adopted touching them, so that the court of 
 equity (assuming it to have jurisdiction at all) can 
 only exercise that jurisdiction with respect to all of 
 them together, the bill is not open to objection for 
 including them all. (Ji) 
 
 Where a party thus joins together in one bill dis- 
 tinct matters, he should show on the face of his bill 
 sufficient grounds to justify his so doing, (/i) So, if 
 other parties beside the company are made co-de- 
 fendants, it ought to appear what their title is to be 
 so joined, or on what grounds it is done. 
 
 589. Of the defence to a bill. In answer to the 
 bill the company may either contend that the plain- 
 tiff's case, as it appears on the face of his bill, is 
 not such as entitles him to the relief he prays for ; 
 or that the bill itself is misconstructed; or they may 
 traverse the allegations of the bill ; or set up addi- 
 tional facts showing that they are justified by their 
 act in pursuing the course they are taking. 
 
 {h) Ranger v. Great Western Railway Company, 1 Railvv. 
 Cas. 1.
 
 Remedies for Strangers against Railway Comps. 42 1 
 
 III. Of the Criminal Remedies against Railway 
 Companies. (?) 
 
 590. A railway company are liable to be pro- 
 ceeded against criminally for the breach of any 
 public duty imposed on them by the law. Thus an 
 indictment has been held to lie against a railway 
 company for disobedience (A) to an order of two 
 justices made under the authority of the company's 
 act. (l) The rule would seem to apply not solely 
 to cases of nonfeasance but of misfeasance also, or 
 excess of the powers of their act, whereby injury 
 results to the public, {m) As for instance, to a 
 charge of cutting through or otherwise dealing with 
 a highway, in a manner not authorized by their act, 
 and thereby obstructing the traffic on it. (n) In 
 cases, however, of misfeasance, the more usual course 
 would rather seem to be to prefer the indictment 
 against the individuals taking part in the act, which 
 forms the ground of the complaint. 
 
 591. For felonies or for crimes involving personal 
 violence, the company are not indictable as such, but 
 
 (i) See post, App. stat. 7 & 8 Vict. c. 85, ss. 17, 18. 
 
 (k) Heg, V. Birmingham and Gloucester Railway Campany, 3 
 Railw. Ca. 157 ; S.C.3 A. & E. N. S. 223. See also Rex v. 
 Regent's Canal Company, cited 1 Railw. Cas. 323. 
 
 (/) If the indictment is preferred at the sessions or assizes, 
 where the parties cannot appear by attorney, the proper course 
 is to remove it into the Court of Queen's Bench by certiorari, 
 and compel appearance by distress infinite ; Reg. v. Birmingham 
 and Gloiiceiter Railway Company, 3 A. & E. N. S. 223. 
 
 (hi) See ibid, and cases there cited. 
 
 (n) See Reg. v. London and Southampton Railway Company, 
 3 Railw. Ca. 34, n. (u).
 
 422 Remedies for or against Railway Companies. 
 
 only the individual members ; (o) where therefore a 
 party meets his death on a railway from furious 
 driving or otherwise under circumstances that show 
 such a want of care or attention in the company or 
 their agents as to constitute it manslaughter, even 
 though the company are in fault, they are not in- 
 dictable, but only those who are conducing parties 
 to the accident. 
 
 592. Where the death is found to be by mis- 
 chance, then the coroner by the jury is to inquire 
 of the deodand and its value, and in whose hands. 
 How and on what grounds an inquest so found is 
 impeachable, has been already considered, (p) If 
 however the inquest contains a true statement of 
 the facts, and is in other respects substantially good, 
 then the only course for the company is to pay the 
 sum assessed as the value of the deodand, or give 
 up the engine, &c. 
 
 593. Where a railway company do any thing to 
 the obstruction of a highway without performing 
 the conditions on which their power of so doing is 
 given to them, it would seem that they are indict- 
 able in the common form for so obstructing the 
 highway, {q) 
 
 (o) Hawk. P. C. b. 1, c. 65, s. 13; judgment of court in 
 Re^. V. Birmingham and Gloucester Railway Company, ubi 
 supra. 
 
 (p) See ante, p. 364, etseq. 
 
 (?) Reg. V. Scett, 3 Railw. Ca. 187 ; 5. C. 3 A. & E. X. S. 
 543.-
 
 Remedies hetweeii individual Shareholders. 423 
 
 Part II. 
 Of Remedies between the individual Shareholders. 
 
 I. Of Remedies at Law. 
 
 594. Where a projected railway turns out to be a 
 fraud and bubble, a party who is entrapped by the 
 projectors into becoming a subscriber, and advanc- 
 ing his money on the faith of the scheme, may, it is 
 conceived, on its ultimate failure have an action of 
 assumpsit against the projectors to recover his 
 money. So if afte»- a scheme is fairly started, a party 
 is entrapped by the fraud and artifice of any holder 
 of shares into becoming a purchaser, he may, it is 
 conceived, as soon as he is aware of the real facts 
 of the case, rescind the contract and maintain a like 
 action for the purchase-money, if it is not restored 
 to him. 
 
 II. Of Remedies in Equity. 
 
 595. Individual shareholders may, on their own 
 behalf and in support of their separate rights, sue 
 other shareholders against whom they can establish 
 a liability on the ground of a fraudulent dealing with 
 their interests or otherwise, (s) 
 
 596. And generally where there are parties among 
 the shareholders having conflicting interests in a 
 particular subject-matter, and relief is sought in 
 regard to those interests, without reference to or in- 
 
 (s) Slainbank v. Fernley, 9 Sim. 556 ; Mare v. Malachi, I 
 My. & Cr. 559.
 
 424 Remedies between individual Shareholders. 
 
 volving the general interests- of the companj', the 
 shareholders on the one side may, it is conceived, 
 file their bill against those on the other for the due 
 adjustment of those interests; or in case of the sup- 
 porters of either interest being too numerous to be 
 made parties, then some one or more of them may 
 be made parties to the suit as representatives of the 
 others, (t) 
 
 597. And where a company is in such a state of 
 disorganization as virtually amounts to a dissolution, 
 and consequently is incapable of obtaining redress 
 in its corporate character for any injury to its cor- 
 porate rights, it may be competent for individual 
 shareholders to sue in their private capacities on 
 behalf of the company, (u) But to sustain such a 
 suit, the possibility of the company obtaining redress 
 on its own behalf must be excluded by the allega- 
 tions of the bill. («) 
 
 (t) Richardson v. Hastings, 22 Law Journ. Ch. 1 42 ; 6'. C. 
 7 Beav. 323 ; Deeks v. Stanhope, 22 L. J. Chan. 453 ; Long v. 
 Yonge, 2 Sim. 369, judgment of Vice- Chancellor. 
 
 («) Foss V. Harbotlle, 2 Hare, 461.
 
 APPENDIX I. 
 
 STATUTES. 
 
 1 Vict. c. 83. 
 
 An Act to compel Clerks of the Peace/or Counties and 
 other Persons to take the Custody of such Docu- 
 ments as shall be directed to be deposited with them 
 under the Standing Orders of either House of Par- 
 liament. [17th July, 1837.] 
 
 Whereas the houses of parliament are in the habit of 
 requiring that, previous to the introduction of any bill into 
 Parliament for making certain bridges, turnpike roads, 
 cuts, canals, reservoirs, aqueducts, waterworks, navigations, 
 tunnels, archways, railways, piers, ports, harbours, ferries, 
 docks, and other works, to be made under the authority of 
 Parliament, certain maps or plans and sections, and books 
 and writings, or extracts or copies of or from certain 
 maps, plans or sections, books, and writings, shall 
 be deposited in the office of the clerk of the peace 
 for every county, riding, or division in England or 
 Ireland, or in the office of the sheriff clerk of every 
 county in Scotland, in which such work is proposed to be 
 made, and also with the parish clerk of every parish in 
 England, the schoolmaster of every parish of Scotland, or 
 in royal burghs with the town clerk, and the postmaster of 
 the post town in or nearest to every parish in Ireland, in 
 which such work is intended to be made, and with other 
 persons: And whereas it is expedient that such maps, 
 plans, sections, books, writings, and copies or extracts of 
 and from the same, should be received by the said clerks 
 of the peace, sheriff clerks, pai'ish clerks, schoolmasters, 
 town clerks, postmasters, and other persons, and should re- 
 main in their custody for the purposes hereinafter men- 
 tioned: Be it therefore enacted by the Queen's most excel- 
 
 A A
 
 ii Appendix — Statutes. 
 
 lent Majesty, by and with the advice and consent of the 
 lords spiritual and temporal, and commons, in this pre- 
 sent parliament assembled, and by the authority of the 
 Clerks of the same, that whenever either of the houses of parliament 
 nfceive the ° shall by its standing orders, already made or hereafter to 
 documents be made, require that any such maps, plans, sections, books, 
 herein men- qj. writings, or extracts or copies of the same, or any of 
 retain them them, shall be deposited as aforesaid, such maps, plans, 
 for the pur- sections, books, writings, copies, and extracts shall be re- 
 re°cted by ceived by and shall remain with the clerks of the peace, 
 the standing sheriff clerks, parish clerks, schoolmasters, town clerks, 
 orders ot_the postmasters, and other persons with whom the same shall 
 parliament, be directed by such standing orders to be deposited, and 
 they are hereby respectively directed to receive and to re- 
 tain the custody of all such documents and writings so di- 
 rected to be deposited with them respectively, in the man- 
 ner, and for the purposes, and under the rules and regu- 
 lations concerning the same respectively directed by such 
 standing orders, and shall make such memorials and en- 
 dorsements on and give such acknowledgments and re- 
 ceipts in respect of the same respectively as shall be 
 thereby directed. 
 Clerks of the H- And be it further enacted, that all persons interested 
 peace, &c. to shall have liberty to, and the said clerks of the peace, she- 
 documents ^^^ clerks, parish clerks, schoolmasters, town clerks, and 
 to be in- postmasters, and every of them, are and is hereby required, 
 spected or ^j. ^|j reasonable hours of the dav, to permit all persons in- 
 
 C0P16Q DV . . V ' A XT 
 
 persons in- terested to inspect during a reasonable time and make ex- 
 terested. tracts from or copies of the said maps, plans, sections, 
 books, writings, extracts and copies of or from the same, 
 so deposited with them respectively, on payment by each 
 person to the clerk of the peace, sheriiF clerk, clerk of the 
 parish, schoolmaster, town clerk, or postmaster having the 
 custody of any such map, plan, section, book, writing, ex- 
 tract, or copy, one shilling for every such inspection, and 
 the further sum of one shilling for every hour during which 
 such inspection shall continue after the first hour, and after 
 the rate of sixpence for every one hundred words copied 
 therefrom. 
 Clerks of the HI. And be it further enacted, that in case any clerk 
 peace, &c. of the peace, sheriff clerk, parish clerk, schoolmaster, town 
 omission to clerk, postmaster, or other person shall in any matter or 
 comply with thing refuse or neglect to comply with any of the provisions 
 s^on^'^oMhis hereinbefore contained, every clerk of the peace, sheriff 
 act, liable to clerk, parish clerk, schoolmaster, town clerk, postmaster, 
 the penalty or other person shall for every such offence forfeit and pay
 
 1 Vict. c. 83. iii 
 
 any sum not exceeding the sum of five pounds ; and every "^ ^^ to be 
 such penalty shall, upon proof of the offence before any a^summary 
 justice of the peace for the county within which such of- way. 
 fence shall be committed, or by the confession of the party 
 offending, or by the oath of any credible witness, be levied 
 and recovered, together with the costs of the proceedings 
 for the recovery thereof, by distress and sale of the goods 
 and effects of the party offending, by warrant under the 
 hand of such justice, which warrant such justice is hereby 
 empowered to grant, and shall be paid to the person or 
 persons making such complaint; and it shall be lawful for 
 any such justice of the peace to whom any complaint shall be 
 made of any offence committed against this act to summon 
 the party complained of before him, and on such summons 
 to hear and determine the matter of such complaint in a 
 summary way, and on proof of the offence to convict the 
 offender, and to adjudge him to pay the penalty or forfei- 
 ture incurred, and to proceed to recover the same, although 
 no information in writing or in print shall have been ex- 
 hibited or taken by or before such justice ; and all such 
 proceedings by summons without information shall be as 
 good, valid, and effectual to all intents and purposes as if 
 an information in writing had been exhibited. 
 
 A A 2
 
 Appendix — Statutes. 
 
 1 & 2 Vict. c. 98. 
 
 An Act to provide for the Conveyance of the Mails by 
 Railways. [14th August, 1838.] 
 
 Whereas it is expedient that provision should be made 
 by law for the conveyance of the mails by railways at a 
 reasonable rate of charge to the public : Be it enacted by 
 the Queen's most excellent Majesty, by and with the ad- 
 vice and consent of the lords spiritual and temporal, and 
 commons, in this present parliament assembled, and by the 
 Postmaster- authority of the same, that in all cases of raihva3-s already 
 require raU^ uiade or in progress or to be hereafter made within the 
 way compa- United Kingdom, b}' which passengers or goods shall be 
 
 nies to con- conveyed in or upon carriages drawn or impelled by the 
 vevthe ■' r . ^ , , ° ^. , ,. ^ •'• 
 
 mails. power 01 steam, or by any locomotive or stationary engines, 
 
 or animal or other power whatever, it shall be lawful for 
 the postmaster general, by notice in writing under his 
 hand delivered to the company of proprietors of any such 
 railway, to require that the mails or post letter bags shall 
 from and after the day to be named in any such notice 
 (being not less than twenty eight days from the delivery 
 thereof) be conveyed and forwarded by such company on 
 their railway, either by the ordinary trains of carnages, 
 or by special trains, as need may be, at such hours or times 
 in the day or night as the postmaster-general shall direct, 
 together with the guards appointed and employed by the 
 postmaster-general in charge thereof, and any other officers 
 of the post office ; and thereupon the said company shall, 
 from and after the day to be named in such notice, at their 
 own costs, provide sufficient carriages and engines on such 
 railways for the conveyance of such mails and post letter 
 bags to the satisfaction of the postmaster general, and re- 
 ceive, take up, carry, and convey, by such ordinary or spe- 
 cial trains of carriages or otherwise, as need may be, all 
 such mails or post letter bags as shall for that purpose be 
 tendered to them, or any of their officers, servants, or 
 agents, by any officer of the post office, and also receive, 
 take up, carry, and convey, in and upon the carnages car- 
 rying such mails or post "letter bags, the guards in charge 
 thereof, and any other officers of the post office, and shall 
 receive, take up, deliver, and leave such mails or post
 
 1 8i 2 Vict. c. 98. V 
 
 letter bags, guards, and officers at such places in the line of 
 such railway, on such days, at such hours or times in the 
 day or night, and subject to all such reasonable regulations 
 and restrictions as to speed of travelling, places, times, and 
 duration of stoppages, and times of arrival, as the post- 
 master-general shall in that behalf from time to time order 
 or dii'ect : Provided always, that the rate of speed to be re- 
 quired shall in no case exceed the maximum rate of speed 
 prescribed by the directors of such railway or railways for 
 the conveyance of passengers by their first class trains ; 
 but that no alteration in the rate of speed of any train by 
 which the mails shall be conveyed shall be made until six 
 calendar months previous notice shall be given to the post- 
 master-general of any such intended alteration. 
 
 II. And be it enacted, that it shall be lawful for the ^^J^j^^^'^^J- 
 postmaster-general (if he shall see fit) to require that the be applied 
 whole of the inside of any carriage used on any railway for excui=iveiy 
 the conveyance of mails or post letter bags shall be exclu- veyance!^"" 
 sively appropriated for the purpose of carrying the mails. 
 
 III. And be it enacted, that the company of proprietors Railway 
 
 c 1 -1 1 II 1 • • 1 ^ 1 1- company, It 
 
 01 any such railway shall, on being required so to do by required, tu 
 
 the postmaster-general, provide and furnish (in addition provide 
 to the carriages aforesaid) a separate carriage or separate carriage for 
 carriages, fitted up as the postmaster-general, or such per- sorting let- 
 son as he shall nominate in that behalf, shall direct, for the '^'^^• 
 purpose of sorting letters therein, and shall forward the 
 same carriage or carriages by their railway, at such hours 
 or times, and subject to all such reasonable regulations as 
 aforesaid, as the postmaster-general shall in that behalf 
 order or direct ; and such company of proprietors shall 
 receive, take up, carry, and convey in any such last-men- 
 tioned carriage or carriages all such post letter bags and 
 oflRcers of the post office as the postmaster-general shall 
 reasonably require, and shall deliver and leave any post 
 letter bags and officers of the post office at such places on 
 the line of the railway as the postmaster-general shall in 
 that behalf from time to time reasonably order and direct. 
 
 IV. And be it enacted, that in case the postmaster-ge- Postmaster- 
 neral shall at any time be desirous of sending by any such %^^l^yaa\\s 
 railway any of her Majesty's mail coaches or mail carts, to be tarried 
 with the mails or post letter bags and guards thereof, and ?" >^ailway 
 carriages for sorting letters, with any officers of the post coaches, in 
 office therein, instead of sending the said mails or post lieu of com- 
 letter bags, guaixls, and officers of the post office by car- ^j'^ges* '^*'^" 
 riages to be provided by such railway company as afore- 
 said, then and in any such case sucli railway company
 
 Railway 
 companies 
 to be subject 
 to directions 
 of post office 
 respecting 
 conveyance 
 of mails. 
 
 Remunera- 
 tion to rail- 
 way com- 
 panies for 
 conveyance 
 of fnails. 
 
 Appendix — Statutes . 
 
 shall, at the request of the postmaster-general, signified by 
 such notice as aforesaid, cause such mail coaches or mail 
 carts, with the mails or post letter bags and guards thereof, 
 and carriages for sorting letters, with any officers of the 
 post office therein, to be conveyed by the usual or proper 
 trucks or frames on their said railway, subject to such re- 
 gulations and restrictions of the postmaster-general as 
 hereinbefore mentioned. 
 
 V. And be it enacted, that for the greater security of 
 the mails or post letter bags so to be carried or conveyed 
 by railways, the company of proprietors of such respective 
 railways along which such maUs or post letter bags, mail 
 coaches, or carts and carriages for sorting letters shall be 
 so required by the postmaster-general to be conveyed, and 
 their respective officers, servants, and agents, shall obey, 
 observe, and perform all such reasonable regulations re- 
 specting the conveyance, delivering, and leaving of such 
 mails and post letter bags, guards, and officers of the post 
 office, mail coaches, or carts and carriages, on any such 
 railways, or on the line thereof, as the postmaster general, 
 or such officer of the post office as he shall nominate in 
 that behalf, shall in his discretion from time to time give 
 or make : Provided always, that it shall not be lawful for 
 any officer or servant of the post office to interfere with or 
 give orders to the engineer or other person having the 
 charge of any engine upon any railway along which mails 
 or post letter bags shall be conveyed ; but if any cause of 
 complaint shall arise the same shall be stated to the con- 
 ductor or other officer of the railway company having the 
 charge of the train, or to the chief officer at any station 
 upon the railway; and in case of any default or neglect on 
 the part of any officers or servants of the railway company 
 to comply with any of the regulations of the postmaster- 
 general or other officer of the post office so to be nomi- 
 nated as aforesaid the railway company shall be wholly re- 
 sponsible for the same. 
 
 VI. And be it enacted, that every company of proprie- 
 tors of any railway along which such mails or post letter 
 bags, mail coaches, carts, or carriages shall be so required 
 by the postmaster-general to be conveyed, shall be entitled 
 to such reasonable remuneration to be paid by the post- 
 master-general to any such company of proprietors for the 
 conveyance of such mails, post letter bags, mail guards, 
 and other officers of the post office, mail coaches, carts, and 
 carriages, in manner required by such postmaster-general, 
 or by such officer of the post office as he shall in that be-
 
 1 8i 2 Vict. c. 98. vi 
 
 half nominate as aforesaid, as shall (either prior to or after 
 the commencement of such service) be fixed and agreed on 
 between the postmaster-general and such company of pro- 
 prietors, or in case of ditference of opinion between them 
 then as shall be determined by arbitration as hereinafter 
 provided, but so that the services which may be required 
 by the postmaster-general, or by such officer of the post 
 office as he in that behalf shall nominate as aforesaid, to be 
 performed by any such company of proprietors, be not 
 suspended, postponed, or deferred by reason of such remu- 
 neration not having been then fixed or agreed on between the 
 said postmaster-general and such company of proprietors, 
 or by reason of the award on any reference to arbitration 
 to determine the remuneration not having been then 
 made. 
 
 VII. And be it enacted, that notwithstanding any Agreements 
 agreement entered into between the postmaster-general and i^^'ween 
 
 ° , 1 1 T 1 postmaster- 
 
 any sucli company, or any award to be made on any such general and 
 reference as aforesaid, fixing the amount of remuneration railway com- 
 to be paid to such company for any services to be rendered amount of 
 by them as aforesaid, it shall be lawful and competent to remunera- 
 and for the postmaster-general, by notice in writing, to re- t'o°. &c. 
 quire, from and after the day to be named in any such altered, 
 notice, not being less than twenty-eight days from the de- 
 livery thereof, any addition to be made to the services in 
 respect of which such agreement shall be entered into or 
 award made ; and in any such case, and also in case of a 
 discontinuance of any part of such services as hereinafter 
 provided, a fresh agreement shall be entered into between 
 the postmaster-general and such company, regulating the 
 future amount of remuneration to be paid by the postmaster- 
 general to such company for such increased or diminished 
 services, as the case may be ; or if the parties cannot agree 
 on such amount the same shall be referred to arbitration in 
 like manner as hereinbefore is mentioned and hereinafter 
 provided as to any original agreement; and such arbi- 
 trators shall have power to award any compensation they 
 may consider reasonable to be paid to any railway company 
 for any loss that may have been occasioned to them by 
 the discontinuance or alteration of the services jireviously 
 agreed to be performed by them by any train or carriage 
 specially required by the postmaster-general to be for- 
 warded for the conveyance of tlie mails, but so that never- 
 theless such increased or diminislied services shall not be 
 suspended, postponed, or deferred by reason of the amount 
 of such increased or diminished remuneration not having
 
 Postmaster, 
 general may 
 terminate 
 services of 
 railway 
 companies 
 on notice ; 
 
 or may 
 terminate 
 services of 
 railway com- 
 panies with- 
 out notice, 
 subject to 
 certain con- 
 ditions. 
 
 Royal arms 
 to be painted 
 on engines 
 or carriages 
 provided for 
 the service 
 of the post 
 office. 
 
 Appendix — Statutes. 
 
 been then fixed or agreed on between the postmaster-ge- 
 neral and such company of proprietors, or by reason of 
 the award on any reference to arbitration to determine the 
 amount of such increased or diminished remuneration not 
 having been then made. 
 
 VIII. And be it enacted, that it shall be lawful for the 
 postmaster-general and he is hereby authorized, at any time 
 during the continuance of the services of any company of 
 proprietors as aforesaid, to give to such company, by ^vrit- 
 ing under his hand, six calendar months preNaous notice 
 that such services or any part thereof shall cease and de- 
 termine ; and thereupon, at the expiration of such six ca- 
 lendar months notice, the said services, or such part 
 thereof as aforesaid, and the remuneration for the same, 
 shall cease and determine. 
 
 IX. And be it enacted, that it shall be lawful for the 
 postmaster-general at any time during the continuance of 
 the services of any company of proprietors as aforesaid, 
 by notice in writing under his hand, absolutely to deter- 
 mine and put an end to the same or any part thereof, 
 without giving any previous notice, or on giving any no- 
 tice less than six calendar months in respect thereof, and 
 thereupon the said services shall cease and determine ac- 
 cordingly : Provided nevertheless, that in case the post- 
 master-general shall, without giving six calendar months 
 notice as aforesaid, at any time determine the services to 
 be required by the postmaster-general of any company of 
 proprietors, or any part of such services, without any cause 
 whatever, or for any cause other than the default by such 
 company of proprietors in the performance of any of the 
 services to be required of them by the postmaster-general, 
 or the breach by such company of proprietors of any of 
 their engagements with the postmaster-general, then and 
 in any such case the postmaster-general shall make to such 
 company a full and fair compensation for all loss thereby 
 occasioned, the amount whereof in case the parties differ 
 about the same shall be ascertained by arbitration as here- 
 inafter mentioned. 
 
 X. And be it enacted, that on all carriages to be pro- 
 vided for the service of the post office on any such railway 
 there shall on the outside be painted the royal arms, in 
 lieu of the name of the owner and of the number of the 
 carriage, and of all other requisites, if any, prescribed by 
 law in respect of carriages passing on any such railway ; 
 but the want of such royal arms on any carriage belonging 
 to or used by the post office shall not form an objection to
 
 I 8f 2 Vict. c. 98. b 
 
 such carriage running on any railway, anytliing to the 
 contrary notwithstanding. 
 
 XI. And be it enacted, that it shall not be competent Bye law* 
 or lawful to or for the company of proprietors of any rail- "gnf a^f/g 
 way to make any bye laws, orders, rules, or regulations not to be 
 which shall militate against or be contraiy or repugnant to repugnant 
 any of the enactments herein contained ; and that if any o'f at"!"*'°" 
 company of proprietors shall make or shall have made any 
 
 such bye laws, orders, I'ules, or regulations, either prior or 
 subsequently to the postmaster-general signifying to the 
 said company his intention that the mails or post letter 
 bags, mail coaches, carts, or carriages shall be conveyed by 
 such railway, all such bye laws, orders, rules, and regula- 
 tions, so far as they shall militate against or be contrary 
 or repugnant to any of the enactments herein contained, 
 shall be and be deemed absolutely void and of no effect, 
 in like manner as if such bye laws, orders, rules, or regu- 
 lations had never been made or passed, anything to the 
 contrary in anywise notwithstanding. 
 
 XII. And be it enacted, that if the company of pro- Penalty fur 
 
 prietors of any railway, or any of their respective officers, ■''■*'"■*■"? o"" 
 "^ 1 11 c 1 neglecting, 
 
 servants, or agents, shall retuse or neglect to carry or con- to convey 
 vey any mails or post letter bags, when tendered to them mails, 
 for such purpose by the postmaster-general or any officer 
 of the post office, or shall refuse to carry oh their railway 
 any mail coaches, carts, or carriages as hereinbefore pro- 
 vided, when so required by the postmaster-general, or shall 
 refuse or neglect to receive, take up, deliver, and leave any 
 such mails or post letter bags, mail guards, or other officers 
 of the post office, mail coaches, carts, or carriages, at such 
 places, at such times, on such days, and subject to such re- 
 gulations and restrictions as to speed of travelling, places, 
 times, and duration of stoppages, as the postmaster-general 
 shall from time to time reasonably direct or appoint, as 
 hereinbefore provided, or shall not obey, observe, and per- 
 form all such regulations respecting the conveyance of the 
 mails and post letter bags, mail coaches, carts, and car- 
 riages on any such railways as the postmaster-general, or 
 such officer of the post office as he shall nominate in that 
 behalf, shall make for the purposes aforesaid, then and in 
 any such case the company of proprietors who, or whose 
 officer, servant, or agent, shall so offend in the premises, 
 shall for every such offence forfeit and pay a sum not ex- 
 ceeding twenty pounds ; provided nevertheless, that the 
 payment of or liability to such penalty shall not in any 
 manner lessen or affect the liability of any such company 
 
 A A 5
 
 X Appendix — Statutes. 
 
 under any bond which may have been given by them 
 under the provisions hereinafter contained. 
 Postmaster- XIII. And be it enacted, that it shall be lawful for the 
 general may postmaster general, if he shall so think fit, to require the 
 way cumpa- company of proprietors of any railway already made or in 
 Hies to give progress or to be hereafter made within the united kingdom 
 bond"'^ ^^ *■" S^^^ security by bond to her Majesty, her heirs and suc- 
 cessors, conditioned to be void if such company shall from 
 time to time carry or convey, or cause to be carried or con- 
 veyed, all such mails or post letter bags, mail guards, and 
 other officers of the post office, mail coaches, carts, and 
 carriages in manner hereinbefore mentioned, when there- 
 imto required by the postmaster-general, or any officer of 
 the post office duly authorized for that purpose, and shall 
 receive, take up, deliver, and leave all such mails or post 
 letter bags, guards and officers, mail coaches, cai;ts, and 
 carriages, at such places, at such times, on such days, and 
 subject to such regulations and restrictions as to speed of 
 travelling, places, times, and duration of stoppages, as here- 
 inbefore mentioned, and shall obey, observe, and perform 
 all such regulations respecting the same as the postmaster- 
 general shall reasonably make, and shaD well and truly 
 do and perform, and cause to be done and performed, all 
 such other acts, matters, and things as by this act are re- 
 quired or directed to be done or performed by or on the 
 part or behalf of such company, their officers, servants, 
 and agents ; and every such bond shall be taken in such 
 sum and in such form as the postmaster-general shall 
 think proper ; and every such security shall be renewed 
 from time to time whenever and so often as such bond 
 shall be forfeited, and also whenever and so often as the 
 postmaster-general shall in his discretion require the same 
 to be renewed ; and if any company of proprietors of any 
 such railway as aforesaid shall, when so required as afore- 
 said, refuse or neglect, for the space of one calendar month 
 next after the delivery of any notice for such purpose to 
 them given by or from the postmaster-general, to execute 
 to her Majesty, her heirs and successors, such bond to the 
 eiFect and in manner aforesaid, or shall at any time refuse 
 or neglect to renew such bond whenever and so often as 
 the same shall by or in pursuance of this act be required to 
 be renewed, such company of proprietors shall forfeit one 
 hundred pounds for every day during the period for which 
 there shall be any refusal, neglect, or default to give or re- 
 new such security as aforesaid, after the expiration of the 
 said one calendar month.
 
 1 S( 2 Vict. c. 98. xi 
 
 XIV. Provided always, and be it enacted, that in all Lessees of 
 cases in which any railway or part of a railway may pre- bei'iuTa'bodv 
 vious to the passing of this act have been demised or let corporate or 
 by the company of proprietors thereof, the body coi-porate company 
 or company, or other persons to whom the same shall have required to 
 been so demised or let, their successors, executors, adminis- give security 
 trators, or assigns, shall dui'ing the continuance of such ajj^yg"*^ 
 lease be liable to all the provisions of this act for or in i-e- ^ei.ooo. 
 spect of such railway or part of a railway, in lieu of such 
 company of proprietors, but so that such lessees (not being 
 a body corporate or company), their executors, adminis- 
 trators, or assigns, shall not be required in respect of any 
 such railway or part of a railway to give security under 
 the foregoing enactment to any amount in any one bond 
 exceeding the sum of one thousand pounds, and shall not 
 in any one year be liable in damages to be recovered upon 
 any bonds which they may have given to any amount 
 exceeding the sum of one thousand pounds and costs of 
 suit. 
 
 XV. And be it enacted, that all notices under the pro- Service of 
 visions of this act by or on behalf of the postmaster-general notices, 
 to any company of proprietors of any railway as aforesaid 
 
 shall be considered as duly served on any company of pro- 
 prietors in case the same shall be given or delivered to any 
 one or more of the directors of such company, or to the 
 secretary or clerk of such company, or be left at any 
 station belonging to such company. 
 
 XVI. And be it enacted, that in all cases in which the For settling 
 postmaster-general and any company of proprietors of any differences 
 railway shall not be able to agree on the amount of remu- postmaster- 
 neration or compensation to be paid by the postmaster- general and 
 general to such company of proprietors for any services '^^^"'anies 
 performed or to be performed by them as hereinbefore in certain 
 mentioned, the same shall be referred to the award of two cases, 
 persons, one to be named by the postmaster-general, and 
 
 the other by such company ; and if such two pei-sons can- 
 not agree on the amount of such remuneration or compen- 
 sation, then to the umpirage of some thii'd person, to be 
 appointed by such two first-named persons previously to 
 their entering upon the inquiry ; and the said award or 
 umpirage, as the case may be, shall be binding and con- 
 clusive on the said parties, and their respective successors 
 and assigns. 
 
 XVII. And be it enacted, that after any contract en- Railroad 
 tered into or award made under the authority of this act companies 
 shall have continued in operation for a period of three tracts have
 
 xu 
 
 existed for 
 a certain 
 period, raay 
 refer them to 
 arbitrators 
 to decide as 
 to their con- 
 tinuance. 
 
 Nomination 
 of arbitra- 
 tors to be 
 Avithin a 
 limited time 
 after appli- 
 cation for 
 references 
 made. 
 
 Construe- 
 tion of 
 terras. 
 
 1 Vict. c. 36. 
 
 Appendix — Statutes. 
 
 years, it shall be competent for any railway company who 
 may consider themselves aggrieved by the terms of remu- 
 neration fixed by such contract or award, by notice under 
 their common seal, to require that it shall be referred to 
 arbitrators to determine whether any and what alteration 
 ought to be made therein ; and thereupon such arbitrators 
 or umpire to be appointed as hereinbefore mentioned shall 
 proceed to inquire into the circumstances, and make their 
 award therein, as in the case of an original agreement : 
 Provided always, that the services performed by such rail- 
 way company for the post office shall in nowise be inter- 
 rupted or impeded thereby. 
 
 XVIII. And be it enacted, that in all references to be 
 made under the authority of this act, the postmaster-general 
 or the railway company, as the case may be, shall nomi- 
 nate his or their arbitrator within fourteen days after no- 
 tice from the other party, or in defaidt it shall be lawful 
 for the arbitrator appointed by the party giving notice to 
 name the other arbitrator ; and such arbitrators shall pro- 
 ceed forthwith in the reference, and make their award 
 therein within twenty-eight days after their appointment, 
 or otherwise the matter shall be left to be determined by 
 the umpire ; and if such umpire shall refuse or neglect to 
 proceed and make his award for the space of twenty-eight 
 days after the matter shall have been referred to him, then 
 a new umpire shall be appointed by the two first-named 
 arbitrators, who shall in like manner proceed and make his 
 award within twenty-eight days, or in default be super- 
 seded, and so toties quoties. 
 
 XIX. And be it enacted, that whenever the term 
 "company of proprietors," or "railway company," or 
 " company," is used in this act, the same shall extend to 
 and be construed to include the proprietors for the time 
 being of any railway, whether a body corporate or indivi- 
 duals, and also (during the continuance of any demise or 
 lease as aforesaid) any person, whether a body corporate 
 or company or individuals, to whom any railway or part 
 of a railway may previous to the passing of this act have 
 been demised or let, and their successors, executors, admi- 
 nistrators, and assigns, unless the subject or context be 
 otherwise repugnant to such construction ; and that the 
 provisions of this act shall be construed according to the 
 respective interpretations of the terms and expressions con- 
 tained in an act passed in the first year of the reign of her 
 present Majesty, intitided "An Act for consolidating the 
 Laws relative to Offences against the Post Office of the 
 
 I
 
 1 S( 2 Vict. c. 98. xii 
 
 United Kingdom, and for regulating the judicial Adminis- 
 tration of the Post Office Laws, and for explaining certain 
 Terms and Expressions employed in those Laws," so far 
 as those interpretations are not repugnant to the subject or 
 inconsistent with the context of such provisions ; and that 
 this present act shall be deemed and construed to be a post 
 office act within the intent and meaning of the said last- 
 mentioned act; and the pecuniary penalties hereby im- > 
 posed shall be recovered and recoverable in the manner 
 and form therein particularly mentioned and expressed 
 with reference to the pecuniary penalties imposed by the 
 post office acts : Provided nevertheless, that any justice of 
 the peace having jurisdiction for any county through which 
 any railway shall pass, in respect of which any penalty or 
 forfeiture under this act shall have been incurred, shall 
 and may hear and determine any offence against this act 
 which may subject any company to a pecuniary penalty 
 not exceeding twenty pounds ; and a summons issued under 
 the post office acts by any such justice against any railway 
 company for the recovery of any such penalty shall be 
 deemed to be sufficiently served in case either the sum- 
 mons or a copy thereof be delivered to any officer, servant, 
 or agent of such company, or be left at any station belong- 
 ing to such company. 
 
 XX. And be it enacted, That this act may be amended Act may be 
 or repealed by any act to lae passed in the present session ^"^"^^'^ "'' 
 of parliament. r pea e .
 
 Appendix — Statutes. 
 
 1 & 2 Vict. c. 117. 
 
 An Act to provide for the Custody of certain Monies 
 paid in pursuance of the Standing Orders of either 
 House of Parliament by Subscribers to Works or 
 Undertakings to be effected under the Authority of 
 Parliament. [16th August, 1838.] 
 
 Whereas it is expedient to pro\'ide for the custody of any 
 sums of money paid in pursuance of any standing order 
 of the lords spiritual and temporal in parliament assem- 
 bled, or of the commons in parliament assembled, by sub- 
 scribei's to works or undertakings to be made under the 
 authority of an act of parliament : Be it therefore enacted 
 by the Queen's most excellent Majesty, by and with the 
 advice and consent of the lords spiritual and temporal, 
 and commons, in this present parliament assembled, and 
 Authority to by the authority of the same, that in all cases in Avhich 
 deposit. any sum of money is required by any standing order of 
 either house of parliament, either now or hereafter to be 
 in force, to be paid by the subscribers to any work or un- 
 dertaking which is to be executed under the authority of 
 an act of parliament, if the director or person or dii-ectors 
 or persons having the management of the affairs of any 
 such proposed work or undertaking, or any five of them, 
 shall apply to the chairman of the committees of the 
 house of lords with respect to any such money required 
 by any standing order of the lords spiritual and temporal 
 in parliament assembled, or to the speaker of the house 
 of commons with respect to any such money required by 
 any standing order of the commons in parliament assem- 
 bled, the said chairman or the said speaker may, by warrant 
 or order under his hand, direct that such sum of money shall 
 be paid in manner hereinafter mentioned ; that is to say, 
 into the bank of England in the name and with the pri- 
 vity of the accountant-general of the court of exchequer 
 in England, if the work or undertaking in respect of 
 which the sum of money is required to be paid is intended 
 to be executed in that part of the United Kingdom called 
 England; or into the bank of England in the name and 
 with the privity of the said accountant-general, or into 
 any of the banks in Scotland established by act of 
 parliament or royal charter in the name and \vith the pri- 
 
 I
 
 1 S( 2 Vict. e. 117. xv 
 
 vity of the Queen's remembrancer of the court of ex- 
 chequer in Scotland, at the option of the person or persons 
 making such application as aforesaid, in case such work or 
 undertaking is intended to be executed in that part of the 
 United Kingdom called Scotland; or into the bank of Ire- 
 land in the name and with the privity of the accountant- 
 general of the court of chancery in Ireland, in case such 
 work or undertaking is intended to be made or executed 
 in that partof the United Kingdom called Ireland; and every 
 such application as aforesaid to the said chairman or speaker 
 shall be made in writing, and be signed by the director 
 or directors, or person or persons having the management 
 of the said work or undertaking, or by any five of them; 
 and therein shall be stated the name or description of 
 such work or undertaking, and name and place of abode 
 or the names and places of abode of such director or di- 
 rectors, person or persons, and the sum of money required 
 to be paid, and the bank and name into and in which the 
 same is to be paid ; and such particulars shall also be set 
 forth in every such warrant or order ; and such warrant or 
 order shall be a sufficient authority for the accountant- 
 general of the said court of exchequer in England, the 
 Queen's remembrancer of the court of exchequer in Scot- 
 land, and the accountant-general of the court of chancery 
 in Ireland respectively, to permit the sum of money 
 directed to be paid by such warrant or order to be placed 
 to an account opened or to be opened in his name in 
 the bank mentioned in such warrant or order (a). 
 
 (a) The abolition of the court of exchequer, as a court ol 
 equity, has given rise to a slight modification of this act; by 
 the 5 Vict. c. 5, " For making further Provisions for the Ad- 
 ministration of Justice," s. 13, it is enacted "That in every 
 case in which, by virtue of any act or acts of parliament, or 
 otherwise, any sum or sums of money would, on or after the 
 said fifteenth day of October one thousand eight hundred and 
 forty one, be payable by any person or persons, or body 
 politic or corporate, into the bank of England, in the name or 
 with the privity of the accountant-general of the court of ex- 
 chequer, and which, when paid in accordingly, would be 
 subject to the order of the said court of exchequer sitting as 
 a court of equity, the same sum and sums shall be payable 
 and paid into the bank of England in the name and with the 
 privity of the accountant-general of the court of chancery, to 
 be placed to his account to the like credit as the same would 
 have been payable if this act had not passed, but subject to the 
 order of the said court of chancery ; and that in every case in
 
 Appen dix — Statutes. 
 
 II. And be it enacted, that it shall be lawful for the 
 person or persons named in such warrant or order, or the 
 survivors or survivor of them, or any five of them, to pay 
 the sura of money mentioned in such warrant or order 
 into the bank mentioned in such warrant or order in the 
 name and with the privity of the officer or person in 
 whose name such sum shall be directed to be paid by 
 such warrant or order, to be placed to his account there 
 ex parte the work or undertaking mentioned in such war- 
 rant or order; and every such sum so paid in, or the se- 
 curities in or upon which the same may be invested as 
 hereinafter mentioned, shall there remain until the same 
 or such securities as aforesaid shall be paid out of such 
 bank in pursuance of the provisions of this act: Provided 
 
 which any money, funds, annuities, or securities, or other pro- 
 perty, would, on or after the said filteenth day of October 
 one thousand eight hundred and forty one, be payable or 
 transferrable into the name of or become vested in the ac- 
 countant-general of the said court of exchequer, and which, 
 when paid or transferred accordingly, would be subject to the 
 order of the same court sitting as a court of equity, the same 
 money, funds, annuities, securities, and other property shall 
 be paid, transferrable, and transferred into the name of or 
 vested in the accountant-general of the said court of chan- 
 cery, in trust to attend the order of the said court of chan- 
 cery, and the same shall be applicable to the same purposes 
 as the same would have been applicable if this act had not 
 passed, except where otherwise directed by this act; and that 
 all money, funds, annuities, securities, and property which 
 shall be so paid and transferred into the name of the said 
 accountant-general of the court of chancery, and which, be- 
 fore the passing of this act, or in case this act had not passed, 
 were paid or transferred, or would have been payable or 
 transferrable, to the accountant-general of the court of ex- 
 chequer, by virtue of anj' act or acts already passed or here- 
 after to be passed, or other authority whatsoever, shall be held 
 subject to such or the like orders and directions of the said 
 court of chancery, and subject to such powers and provisions, 
 as the same would have been subject to in case the same had 
 been originally directed or authorized to have been paid and 
 transferred into the name of the accountant-general of the 
 said court of chancery, and had been made originally subject 
 to the orders and directions of the last mentioned court; 
 and the orders and directions of the said court of chancery 
 relating thereto shall have the same force and effect as any 
 like orders and directions of the court of exchequer relating 
 thereto would have had if this act had not passed."
 
 1 <^ 2 Vict.c. 117. xvii 
 
 always, that every sum paid into the bank of England in 
 the name and with the privity of the accountant-general of 
 the court of exchequer under the provisions of this act shall 
 be paid in and placed to his account there pursuant to the 
 method prescribed by an act passed in the first year of the 
 reign of his late Majesty King George the Fourth, inti- 
 tuled " An Act for the better securing Money and Effects 1 ^- 4, c-35. 
 paid into the Court of Exchequer at Westminster on ac- 
 count of the Suitors of the said Court, and for the Appoint- 
 ment of an Accountant-General and Two Masters of the 
 said Court, and for other Purposes," and pursuant to the 
 general orders of the said court, and without fee or re- 
 ward; and every sum paid into the bank of Ireland in the 
 name and with the privity of the acountant-general of the 
 court of chancery in Ireland, under the provisions of this 
 act, shall be paid in and placed to his account pursuant to 
 the method prescribed by an act made and passed in the 
 Parliament of Ireland in the twenty-third and twenty- 
 fourth years of the reign of his late Majesty King George 
 the Third, intituled "An Act for the better securing 23 & 24 G. 3. 
 the Monies and Effects of the Suitors of tlie Court of Chan- ^'-^ 
 eery and Exchequer, by depositing the same in the Na- 
 tional Bank, and to prevent the forging and counterfeiting 
 any Draft, Order, or other Voucher for the Payment or 
 Delivery of such Money and Effects, and for other Pur- 
 poses," and pursuant to the general orders of the said 
 Court, and without fee or reward, 
 
 III. And be it enacted, that if the person or persons investment 
 named in such warrant or order, or the survivor or survi- "^ deposit, 
 vors of them, or any five of them, desire to have invested 
 
 any sum so paid into the bank of England or the bank of 
 Ireland, the court in the name of whose accountant-gene- 
 ral the same may have been paid, on a petition presented 
 to such court in a summary way by him or them, may 
 order that such sum shall, until the same be paid out of 
 court in pursuance of this Act, be laid out in the three per 
 centum consolidated or three per centum reduced bank 
 annuities, or any government Security or(6) securities. 
 
 IV. And be it enacted, that on the termination of the Repayment 
 session of parliament in which the petition or bill for the of deposit. 
 
 (b) Exchequer bills, it seems, are government securities, 
 within the meaning of the above clause, so decided by Shad- 
 well, V. C, in ex parte South Eastern Railway Company, 9 
 Jur. 650, overruling decision of Alderson, B. to the contrary 
 in ex parte Chaplin, 3 Y. & C. 397.
 
 Appendix — Statutes. 
 
 purpose of making or sanctioning an j' such work or under- 
 taking shall have been introduced into parliament, or if such 
 petition or bill shall be rejected or finally withdrawn by 
 some proceeding in either house of parliament, or shall not 
 be allowed to proceed, or if an act be passed authorizing 
 the making of such work or undertaking, and if in any or 
 either of the foregoing cases the person or persons named 
 in such waiTant or order, or the survivor or survivors of 
 them, or the majority of such (c) persons, apply by pe- 
 tition to the court in the name of whose accountant-gene- 
 ral the sura of money mentioned in such warrant or 
 order shall have been paid, or to the court of exchequer 
 in Scotland in case such sum of money shall have been 
 paid in the name of the said Queen's remembrancer, the 
 court in the name of whose accountant-general or Queen's 
 remembrancer such sum of money shall have been paid 
 shall, by order, direct the sum of money paid in pursu- 
 ance of such waiTant or order, or the stocks, funds, or 
 securities in or upon which the same are invested, and the 
 interest or dividends thereof, to be transferred and paid 
 to the party or parties so applying or to any other person 
 or persons whom they may appoint in that (a?) behalf; but 
 no such order shall be made in the case of any such peti- 
 tion or bill being rejected, or not being allowed to proceed, 
 or withdrawn, unless it be proved by the certificate of the 
 chairman of committees, if the said petition or bill was 
 rejected or not allowed to proceed, or withdrawn in its 
 passage through the house of lords, or of the said speaker, if 
 the said petition or bill was rejected or not allowed to pro- 
 ceed, or withdrawn during its passage through the house 
 of commons, that the petition or bill has been either so 
 
 {c) Where money was paid into the bank under this act, 
 by five of the directors of a railway company, the court of 
 chancery refused to order it to be paid out to three of them 
 on their petition, unless the others appeared and consented to 
 the application. In re Staines and Richmond Railway Com- 
 pany, 9 Jur. 479. 
 
 (d) Where money was paid into the bank under this act, 
 the court, upon the railway company obtaining their act of 
 parliament, and on petition of all the persons in whose names 
 the money was standing, being the principal promoters of the 
 undertaking, made an order for payment of such money to 
 their banker, who was the banker to the railway company, (in 
 re Warwick and Leamington Railway Company, 13 Sim. 31 ;) 
 see also n. (c), ante. 
 
 J
 
 1 8f2VicLc. 117. 
 
 rejected, or not allowed to proceed, or so withdrawn by 
 some proceeding in one or other house of parliament ; 
 which certificate the said chairman or speaker shall grant 
 on the application in writing of the person or persons 
 or the majority of the persons named in such warrant or 
 order, or the survivor or survivors of them; and every 
 such certificate shall be conclusive proof of such rejection, 
 or not proceeding, or withdrawal.
 
 Appendix — Statutes. 
 
 2 & 3 Vict. c. 45. 
 
 Jn Act to amend an Act of the Fifth and Sixth Years 
 of the Reign of His late Majesty King William the 
 Fourth relating to Highways. 
 
 [17th August, 1839.] 
 
 5 & 6 w. 4, Whereas by an act passed in the session of parliament 
 c. 50. holden in the fifth and sixth years of the reign of his late 
 
 Majesty King William the Fourth, intituled an Act to 
 consolidate and amend the Laws relating to Highways in 
 that Part of Great Britain called England, it is amongst 
 other things by the said act enacted, that whenever a rail- 
 road shall cross any highway for carts or carriages the pro- 
 prietors of the said railroad shall make and maintain good 
 and sufficient gates at each of the said crossings, and shall 
 employ good and proper persons to attend to the opening 
 and shutting of such gates, so that the persons, carts, or 
 carriages passing along such road shall not be exposed to 
 any danger or damage by the passing of any carnages or 
 engines along the said railroad, and any complaint for any 
 neglect in respect of the said gates shall be made within 
 one month after the said neglect to one justice, who may 
 summon the party so complained against to ajjpear before 
 the justices at their next special sessions for the highways, 
 who shall hear and decide upon the said complaint, and 
 the proprietor so offending shall forfeit any sum not ex- 
 ceeding five pounds : and whereas it is also by the said 
 act further enacted, that nothing in this act contained shall 
 apply to any turnpike roads, except where expressly men- 
 tioned, or to any roads, bridges, carriageways, cartways, 
 horseways, bridleways, footways, causeways, churchyards, 
 or pavements which now are or may hereafter be paved, 
 repaired, or cleansed, broken up or diverted, under or by 
 virtue of the provisions of any local or personal act or acts 
 of parliament : and whereas it is deemed expedient to 
 amend the said provisions in the said act, and to extend 
 the same to turnpike roads in England : be it therefore 
 enacted by the Queen's Most Excellent Majesty, by and 
 with the advice and consent of the lords spiritual and 
 temporal, and commons, in this present parliament as- 
 sembled, and by the authority of the same, that wherever
 
 2^3 Vict. c. 45. xxi 
 
 a railroad crosses or shall hereafter cross any turnpike Proprietors 
 road or any highway or statute labour road for carts or °'^^^J^°^^ 
 carriages in Great Britain, the proprietors or directors of gates where 
 the company of proprietors of the said railroad shall make any railroad 
 and maintain good and sufficient gates across each end of highway.&c- 
 such turnpike or other road as aforesaid at each of the said 
 crossings, and shall employ good and proper persons to 
 open and shut such gates, so that the pei'sons, carts, or 
 carriages passing along such turnpike or highway shall not 
 be exposed to any danger or damage by the passing of any 
 carriages or engines along the said railroad ; and an)' com- 
 plaint for any neglect in respect of the said gates shall be 
 made within one calendar month after the said neglect to 
 any justice of the peace, or if in Scotland to the sheriff of 
 the county, who may summon the party so complained 
 against to appear before them or him at the next petty 
 session or court to be holden for the district or division 
 within which such gates are situate, who shall hear and 
 decide upon the said complaint ; and the proprietor or di- penalty ^5 
 rector so offending shall for each and every day of such for each 
 neglect forfeit any sum not exceeding five pounds, toge- giJct."^' 
 ther with such costs as to the justices or sheriff depute 
 aforesaid before whom the conviction shall take place shall 
 seem fit. 
 
 II. And be it further enacted, that the penalties by this How penai- 
 act imposed, and the costs to be allowed and ordered by J^f^'*^^';^^^'^ '"^ 
 the authority of this act, shall in England be recovered and applied, 
 and applied in the same manner as any penalties and costs 
 
 under the said act, and in Scotland sliall be recovered and 
 applied to the maintenance of the statute labour roads 
 within the district where the offence is committed. 
 
 III. And be it further enacted, that this act shall com- Commence- 
 mence and take effect from and after tlie thirtieth day of ment of act. 
 September, one thousand eight hundred and thirty-nine.
 
 App€7idix — Statutes. 
 
 No railway 
 to be opened 
 without no- 
 tice to the 
 board of 
 trade. 
 
 Penalty for 
 opening rail- 
 ways with, 
 out notice 
 
 Returns to 
 be made by 
 railway com 
 panies. 
 
 3&4 Vict. c. 97. 
 
 An Act for regulating Railways. 
 
 10th August, 1840. 
 
 Whereas it is expedient for the safety of the public to pro- 
 vide for the due supervision of railways : be it therefore en- 
 acted bytheQueen's most excellent Majesty, byand with the 
 advice and consent of the lords spiritual and temporal, and 
 commons, in this present parliament assembled, and by the 
 authority of the same, that, after two months from the pass- 
 ing of this act, no railway, or portion of any railway, shall 
 be opened for the public conve3'anceofpassengers or goods 
 until one calendar month after notice in writing of the in- 
 tention of opening the same shall have been given, by the 
 company to whom such railway shall belong, to the lords 
 of the committee of her Majesty's privy council appointed 
 for trade and foreign plantations. 
 
 II. That if any railway, or portion of any railway, shall 
 be opened without due notice as aforesaid, the company to 
 whom such railway shall belong shall forfeit to her Majesty 
 the sum of twenty pounds for every day during which the 
 same shall continue open, until the expiration of one calen- 
 dar month after the company shall have given the like 
 notice as is herein-before required before the opening of 
 the railway ; and any such penalty may be recovered in 
 any of her Majesty's courts of record. 
 
 III. That the lords of the said committee may order and 
 direct every railway company to make up and deliver to 
 them returns, according to a form to be provided by the 
 lords of the said committee, of the aggregate traffic in pas- 
 sengers, according to the several classes, and of the aggre- 
 gate traffic in cattle and goods respectively, on the said 
 railway, as well as of all accidents which shall have occur- 
 red thereon attended with personal injury, and also a table 
 of all tolls, rates, and charges from time to time levied on 
 each class passengers, and on cattle and goods, conveyed on 
 the said railway; and if the returns herein specified shall 
 not be delivered within thirty days after the same shall have 
 been required, every such company shall forfeit to her Ma- 
 jest}- the sum of twenty pounds for everj' day during which 
 the said company shall wilfully neglect to deliver the same ;
 
 B 8( 4 Vict. c. 97. xxiii 
 
 and every such penalty may be recovered in any of her 
 Majesty's courts of record: provided always, that such 
 returns shall be required, in like manner, and at the same 
 time, from all the said companies, unless the lords of the 
 said committee shall specially exempt any of the said com- 
 panies, and shall enter the grounds of such exemption in 
 the minutes of their precedings. 
 
 IV. That every officer of any company who shall will- Penalty for 
 fully make any false return to the lords of the said com- J^turns. 
 mittee shall be deemed guilty of a misdemeanor. 
 
 V. That it shall be lawful for the lords of the said com- Board of 
 mittee, if and when they shall think fit, to authorize any ^^^^^lut^T. 
 proper person or persons to inspect any railway; and it sons to in. 
 shall be lawful for every person so authorized, at all reason- sped rail- 
 able times upon producing his authority, if required, to ^^^^' 
 enter upon and examine the said railway, and the stations, 
 
 works, and buildings, and the engines and carriages belong- 
 ing thereto : provided always, that no person shall be eligi- 
 ble to the appointment as inspector as aforesaid who shall 
 within one year of his appointment have been a director, 
 or have held any office of trust or profit under any railway 
 company. 
 
 VI. That every person wilfully obstructing any person. Penalty on 
 duly authorized as aforesaid, in the execution of his duty, P"8ons ob- 
 shall, on conviction before a justice of the peace having spector. 
 jurisdiction in the place where the offence shall have been 
 committed, forfeit and pay for every such offence any sum 
 
 not exceeding ten pounds; and on default of payment of 
 any penalty so adjudged, immediately or within such time 
 as the said justice of the peace shall appoint, the same jus- 
 tice, or any other justice having jurisdiction in the place 
 where the offender shall be or reside, may commit the of- 
 fender to prison for any period not exceeding three calen- 
 dar months ; such commitment to be determined on payment 
 of the amount of the penalty; and every such penalty shall 
 be returned to the next ensuing court of quarter sessions 
 in the usual manner. 
 
 VII. And whereas many railway companies are or may Copies of ex- 
 hereafter be empowered by act of parliament to make bye '^^'"g bye 
 laws, orders, rules, or regulations, and to impose penalties laid before 
 for the enforcement thereof, upon persons other than the the board of 
 servants of tlie said companies, and it is expedient that ^'^ ^' 
 such powers should be under proper control ; be it enacted, 
 
 that true copies of all sucli bye laws, orders, rules, and re- 
 gulations made under any such powers by every such com- 
 pany before the passing of this act, certified in such manner
 
 xxiv Appenaix — Statutes. 
 
 as the lords of the said committee shall from time to time 
 
 direct, shall, within two calendar months after the passing 
 of this act, be laid before the lords of the said committee ; 
 otherwise to and that every such bye law, order, rule, or regulation, not 
 be void. g^ j^^j^j \3ef0re the lords of the said committee within the 
 aforesaid period, shall, from and after that period, cease to 
 have any force or effect, saving in so far as any penalty 
 may have been then already incurred under the same. 
 No future VIII. That no such bye law, order, rule, or regulation 
 
 be vauTtiU "^^^^ Under any such power, and which shall not be in 
 two calendar force at the time of tlie passing of this act, and no order, 
 months after j.yig^ Qj. regulation, annulling any such existing bye law, 
 been laid be- rule? order, or regulation, which shall be made after the 
 fore the passing of this act, shall have any force or eflect until two 
 trade ° calendar months after a true copy of such bye law, order, 
 
 rule, or regulation, certified as aforesaid, shall have been 
 laid before the lords of the said committee, unless the lords 
 of the said committee shall, before such period, signify their 
 approbation thereof. 
 Board of IX. That it shall be lawful for the lords of the said 
 
 d^isaUow^bye committee, at any time either before or after any bye law, 
 laws. order, rule, or regulation, shall have been laid before them 
 
 as aforesaid shall have come into operation, to notify to the 
 company who shall have made the same their disallow- 
 ance thereof, and, in case the same shall be in force at the 
 time of such disallowance, the time at which the same shall 
 cease to be in force ; and no bye law, order, rule, or regu- 
 lation, which shall be so disallowed shall have any force or 
 effect whatsoever, or, if it shall be in force at the time of 
 such disallowance, it shall cease to have any force or effect 
 at the time limited in the notice of such disallowance, saving 
 in so far as any penalty may have been then already in- 
 cuiTed under the same. 
 Provisionsof X. That SO much of every clause, provision, and enact- 
 railway acts ment, in any act of parliament heretofore passed as may 
 confirma^tion I'equire the approval or concurrence of any justice of the 
 of bye laws peace, court of quarter sessions, or other person or persons, 
 repealed. other than members of the said companies, to give validity 
 to any bye laws, orders, rules, or regulations made by any 
 sucli company, shall be repealed. 
 Board of ■^^- That whenever it shall appear to the lords of the 
 
 trade may said committee, that any of the provisions of the several 
 direct prose- jj^jg pf parliament regulating any of the said companies, or 
 enforce pro- the provisions of this act, have not been complied with on 
 visions of the part of any of the said companies, or any of their offi- 
 railway acts. ^^^^^ ^^^ that it would be for the public advantage that the
 
 S8{4 Vict. c. 97. xxv 
 
 due performance of the same should be enforced, the lords 
 of the said committee shall certify the same to her Majes- 
 ty's attorney-general for England or Ireland, or to the lord 
 advocate for Scotland, as the case may require ; and there- 
 upon the said attorney-general or lord advocate shall, by 
 information, or by action, bill, plaint, suit at law or in 
 equity, or other legal proceeding, as the case may require, 
 proceed to recover such penalties and forfeitures, or other- 
 i wise to enforce the due performance of the said provisions, 
 by such means as any person aggrieved by such non-com- 
 pliance, or otherwise authorized to sue for such penalties, 
 might employ under the provisions of the said acts : pro- Notice to be 
 
 vided alwavs, that no such certificate as aforesaid shall be 6'ven to the 
 
 ,,-',,,., . , . ., company, 
 
 given hy the lords of the said committee until twenty-one 
 
 days after they shall have given notice of their intention to 
 
 give the same to the company against or in relation to 
 
 whom they shall intend to give the same. 
 
 XII. That no legal proceedings shall be commenced Prosecutions 
 
 under the authority of the lords of the said committee *" ''e "nder 
 ., ■' „ „. • ^ 1 • sanction of 
 
 against any railway company tor any offence against this board of 
 
 act, or any of the several acts of parliament relating to rail- t''?^f' ^^^ 
 
 ways, except upon such certificate of the lords of the said year aVer*^ 
 
 committee as aforesaid, and within one year after such the offence. 
 
 offence shall have been committed. 
 
 XIII. That it shall be lawful for any officer or agent of Punishment 
 any railway company, or for any special constable duly °f ^^^^j^^J"'^ 
 appointed, and all such persons as they may call to their companies 
 assistance, to seize and detain any engine driver, guard, ?"'% of mis- 
 porter, or other servant in the employ of such company 
 
 who shall be found drunk while employed upon the railway, 
 or commit any offence against any of the bye laws, rules, 
 or regulations of such company, or shall wilfully, ma- 
 liciously, or negligently do or omit to do any act whereby 
 the life or limb of any person passing along or being upon 
 the railway belonging to such company, or the works thereof 
 respectively, shall be or might be injured or endangered, or 
 whereby the passage of any of the engines, carriages, or 
 trains shall be or might be obstructed or impeded, and to 
 convey such engine driver, guard, porter, or other servant 
 so offending, or any person counselling, aiding, or assisting 
 in such offence, with all convenient despatch, before some 
 justice of the peace for the place within which such offence 
 shall be committed, without any other warrant or authority 
 than this act; and every such person so offending, and 
 every person counselling, aiding, or assisting therein as 
 aforesaid, shall, when convicted before such justice as afore-
 
 Justice of 
 the peace 
 empoivered 
 to send any 
 case to be 
 tried by the 
 quarter 
 sessions. 
 
 Appendix — Statutes. 
 
 said, (who is hereby authorized and required, upon com- 
 plaint to him made, upon oath, without information in 
 "writing, to take cognizance thereof, and to act summarily 
 in the premises,) in tlie discretion of such justice, be impri- 
 soned, with or without hard labour, for any term not ex- 
 ceeding two calendar months, or, in the like discretion of 
 such justice, shall for every such offence forfeit to her Ma- 
 jesty any sum not exceeding ten pounds, and in default of 
 payment thereof shall be imprisoned, with or without hard 
 labour as aforesaid, for such period, not exceeding two 
 calendar months, as such justice shall appoint ; such com- I 
 mitment to be determined on payment of the amount of 
 the penalty ; and every such penalty shall be returned to 
 the next ensuing court of quarter sessions in the usual 
 manner. 
 
 XIV. Provided always, and be it enacted, that (if upon 
 the hearing of any such complainthe shall think fit) it shall 
 be lawful for such justice, instead of deciding upon the mat- 
 ter of complaint summarily, to commit the person or persons 
 charged with such offence for trial for the same at the 
 quarter sessions for the county or place wherein such offence 
 shall have been committed, and to order that any such 
 person so committed shall be imprisoned and detained in 
 any of her Majesty's gaols or houses of correction in the 
 said county or place in the meantime, or to take bail for 
 his appearance, with or without sureties, in his discretion ; 
 and every such person so offending, and convicted before 
 such court of quarter sessions as aforesaid (which said court, 
 is hereby required to take cognizance of and hear and de- 
 termine such complaint,) shall be liable, in the discretion 
 of such court, to be imprisoned, with or without hard 
 labour, for any term not exceeding two years. 
 
 XV. That from and after the passing of this act every 
 person who shall wilfully do or cause to be done anything 
 in such manner as to obstruct any engine or carriage using 
 any railway, or to endanger the safety of persons conve)'ed 
 in or upon the same, or shall aid or assist therein, shall be 
 guilty of a misdemeanor, and being convicted thereof shall 
 be liable, at the discretion of the court before which he 
 shall have been convicted, to be imprisoned, with or with- 
 out hard labour, for any term not exceeding two years. 
 
 XVI. That if any person shall wilfull}' obstruct or im- 
 iiientof per- pede any officer or agent of any railway company in the 
 st'ructin? the execution of his duty upon any railway, or upon or in any 
 oilifers of of the Stations or other works or premises connected there- 
 any railway ^yith, or if any person shall wilfully trespass upon any rail- 
 
 Punishment 
 
 of persons 
 
 obstructing 
 
 railway- 
 
 For punish-
 
 3.^-4 Vict, c 07. xxvii 
 
 way, or any of the stations or other works or premises con- company, or 
 
 nected therewith, and shall refuse to quit the same npon *''^^P*^^'"S 
 
 1 • 11 rr- <. 1 ' . 1 "pon any 
 
 request to him made by any oincer or agent oi the said railway. 
 
 company, every such person so offending, and all others 
 aiding or assisting therein, shall and may be seized and de- 
 tained by any such officer or agent, or any person whom 
 he may call to his assistance, until such offender or offen- 
 ders can be conveniently taken before some justice of the 
 peace for the county or place wlierein such offence shall be 
 committed, and when convicted before such justice as 
 aforesaid (who is hereby authorized and required, upon 
 complaint to him upon oath, to take cognizance thereof, and 
 to act snmmarily in the premises,) shall, in the discretion 
 of such justice, forfeit to her Majesty any sum not exceed- 
 ing five pounds, and in default of payment thereof shall or 
 maybe imprisoned for any term not exceeding two calendar 
 months, such imprisonment to be determined on payment 
 of the amount of the penalty. 
 
 XVII. That no proceeding to be had and taken in pur- Proceedings 
 
 suance of this act shall be quashed or vacated for want of "°' *° ^^ 
 
 form, or be removed by certiorari, or by any other writ or want of form 
 
 process whatsoever, into any of her Majesty's courts of re- p"" removed 
 
 cord at Westminster or elsewhere, any law or statute to the '"'° "'^ ^'*' 
 
 . , ,. ^ J penor 
 
 contrary notwithstanding. courts. 
 
 XVIII. And whereas many railway companies are Repeal of all 
 bound, by the pi'ovisions of the acts of parliament by which Pi'ovisions in 
 they are incorporated or regulated, to make, at theexpence thatempower 
 of the owner or occupier of lands adjoining the railway, two justices 
 openings in the ledges or flanches thereof (except at certain ^'i.^f^T'^ 
 places on such railways in the said acts specified), for effect- specting the 
 ing communications between such railway and any colla- Pj'ope'' 
 teral or branch railway to belaid down over such lands, and op'e"ings'in 
 any disagreement or difference which shall arise as to the the ledges 
 proper places for making any such openings in the ledges °j;^*"<=hes 
 or flanches is by such acts directed to be referred to the 
 decision of any two justices of the peace within their re- 
 spective jurisdictions: and whereas it is expedient that so 
 
 much of every clause, provision, and enactment in any act 
 of parliament heretofore passed as gives to any justice or 
 justices the power of hearing or deciding upon any such 
 disagreement or difference as to the proper places for any 
 such openings in the ledges or flanches of any railway, 
 should be repealed; be it therefore enacted, that so much of 
 every such clause, provision, and enactment as aforesaid 
 shall be repealed. 
 
 bb2
 
 xxviii Appendix — Statutes. 
 
 Board of XIX. That ill case any disagreement or difference shall 
 
 lermlnesuch ^^^^^ between any such owner or occupier, or other persons, 
 disputes in and any railway company, as to the proper places for any 
 future. such openings in the ledges or flanches of any railway (ex- 
 
 cept at such places as aforesaid), for the purpose of such 
 communication, then the same shall be left to the decision 
 of the lords of the said committee, who are hereby empow- 
 ered to hear and determine the same in such way as they 
 shall think fit, and their determination shall be binding on 
 all parties. 
 Communica- XX. That all notices, returns, and other documents, re- 
 tions to the quired by this act to be given to or laid before the lords of 
 )e°ft'at their ^^^^ ^^^^ committee shall be delivered at or sent by the post 
 office. to the office of the lords of the said committee; and all no- 
 
 Coramunica- tices, appointments, requisitions, certificates, or other docu- 
 
 J'°"l''J *''f ments in writing, signed by one of the secretaries of the said 
 board how to . i r.. • i /• i i 
 
 be authenti- committee, or by some othcer appointed tor tliat purpose by 
 
 cated. the lords of the said committee, and purporting to be made 
 
 by the lords of the said committee, shall, for the purposes of 
 
 What shall this act, be deemed to have been made by the lords of the 
 
 „L/^"*^'^ said committee; and service of the same upon any one or 
 good service v ^\ i- .. r -i ii_ 
 
 on railway more ot the directors oi any railway company, or on the 
 
 company. secretary or clerk of the said company, or by leaving the 
 same with the clerk or officer atone of the stations belong- 
 ing to the said company, shall be deemed good service upon 
 the said compan}'. 
 Meaning of XXI. That wherever the word " Railway " is used in 
 h'^R m"'^''^., this act it shall be construed to extend to all railways con- 
 and " Com- structed under the powers of any act of parliament, and 
 pauy. " intended for the conveyance of passengers in or upon car- 
 riages drawn or impelled by the power of steam or by any 
 other mechanical power; and wherever the word "Com- 
 pany" is used in this act it shall be construed to extend to 
 and include the proprietors for the time being of any such 
 railway, whether a body corporate or individuals, and their 
 lessees, executors, administrators, and assigns, unless the 
 subject or context be repugnant to such construction. 
 ■Act may be XXII. That this act may be amended or repealed by 
 repealed this any act to be passed in the present session of parliament.
 
 5 <&• 6 Vict. c. 55. 
 
 5 & 6 Vict. c. 55. 
 
 An Act for the better Regulation of Railways, and for 
 the Conveyance of Troops. [30th July, 1 842.] 
 
 Whereas by an act passed in the third and fourth years 
 of the reign of her present Majesty, intituled " An Act for 3^4 Vict, 
 regulating Railways," provision was made for the super- ''' " 
 vision of railways: and whereas it is expedient for the 
 safety of the public to make further provision for that pur- 
 pose: he it enacted, by the Queen's most excellent Majesty, 
 by and with the advice and consent of the lords spiritual 
 and temporal, and commons, in this present parliament Co mneace. 
 assembled, and by the authority of the same, that this act ™entof act. 
 shall come into operation on the passing thereof. 
 
 II. That the provisions of the said recited act and of this Recited act 
 act shall be construed together as one act, except so far as ^"1^^ ^^^^ 
 the proTisions of the said recited act are hereby repealed, or strued toge- 
 shall be inconsistent with the provisions of this act. ^^*''* 
 
 III. And whereas by the said recited act it is enacted, Notice be- 
 that after two months from tlie passing of the said recited ramvay^e-"* 
 act no railway, or portion of any railway, shall be opened pealed. 
 
 for the public conveyance of passengers or goods until one 
 calendar month after notice in writing of the intention of 
 opening the same shall have been given, by the company 
 to whom sucli railway shall belong, to the lords of the 
 committee of her Majesty's privy council appointed for trade 
 and foreign plantations: and whereas by the said recited 
 act it is also enacted, that if any railway or portion of any 
 railway shall be opened without due notice as aforesaid, the 
 company to whom such railway shall belong shall forfeit to 
 her Majesty the sum of twenty pounds for every day during 
 which the same shall continue open, until the expiration of 
 one calendar month after the company shall have given the 
 like notice as is hereinbefore required before the opening of 
 the railway, and any such penalty maybe recovered in any 
 of her Majesty's courts of record; be it enacted, that the 
 said recited provisions of the said act shall be and they are 
 hereby repealed. 
 
 IV. That no railway or portion of any railway shall be intend^ed 
 opened for the public conveyance of passengers until one orening o# 
 calendar montli after notice in writing of the intention of ''"''"'^y- 
 opening the same shall have been given, by the company to
 
 XXX Appendix — Statutes. 
 
 whom such railway shall helong, to the lords of the com- 
 mittee of her Majesty's privy council appointed for trade 
 and foreign plantations, and until ten days after notice in 
 writing shall have been given by the said company to the lords 
 of the said committee of the time when the said railway or 
 portion of railway will be, in their opinion, sufficiently com- 
 pleted for the safe conveyance of passengers, and ready for 
 inspection. 
 If railway V. That if any railway or portion of any railway shall be 
 
 opened wuh- opened without such notice as aforesaid, the company to 
 company to whom such railway shall belong shall forfeit to her Majesty 
 forfeit 201. the sum of twenty pounds for every day during which the 
 same shall continue open until the said notices shall have 
 been duly given and shall have expired; and every such 
 penalty may be recovered in any of her Majesty's courts of 
 record, or in the court of session or in any of the sheriff's 
 courts in Scotland. 
 Board of ^'I- That if the officer or officers appointed by the lords 
 
 trade em- of the Said committee to inspect any such railway or portion 
 powered to^ ^f railway shall after inspection thereof, report in writing 
 opening. to the lords of the said committee that, in his or their opinion, 
 the opening of the same would be attended with danger to 
 the public using the same, by reason of the incompleteness 
 of the works or permanent way, or the insufficiency of 
 the establishment for working such railway, together with 
 the grounds of such opinion, it shall be lawful for the 
 lords of the said committee, and so from time to time, as 
 often as such officers shall after further inspection thereof 
 so report, to order and direct the company to whom such 
 railway shall belong to postpone such opening for any period 
 not exceeding one calendar month at any one time, until 
 it shall appear to the lords of the said committee that such 
 opening may take place without danger to the public; and 
 if any such railway, or any portion thereof, shall be opened 
 contrary to any such order and direction of the lords of the 
 said committee, the company to whom such railways shall 
 belong shall forfeit to her Majesty the sum of twenty pounds 
 for every day during which the same shall continue open 
 contrary to such order and direction; and any such penalty 
 may be recovered in any of lier Majesty's courts of record, 
 or in tlie court of session or in any of the sheriff's courts in 
 Scotland: provided always, that no such order as aforesaid 
 shall be binding upon any railway company unless therewith 
 shall be delivered to the said company a copy of the report 
 of the officer or officers on which such order shall be 
 founded.
 
 5 S( 6 Vict, c. 55. xxxi 
 
 VII. That every railway company shall, within forty- Notice of 
 •1x1 r>x xi i-i •! 11 • accidents to 
 
 eight hours after the occurrence upon tlie railway belonging ^e gWen to 
 
 to such company of any accident attended with serious per- the board of 
 sonal injury to the public using the same, give notice f^'^'^- 
 thereof to the lords of the said committee; and if any com- 
 pany shall wilfully omit to give such notice every such com- 
 pany sliall forfeit to her Majesty the sum of five pounds for 
 every day during which the omission to give the same shall 
 continue; and every such penalty may be recovered in any 
 of her Majesty's courts of record, or in the court of session 
 or in any of the sheriffs' courts in Scotland. 
 
 VIII. That the lords of the said committee may order Board of 
 and direct any railway company to make up and deliver to p^vered to 
 them returns of serious accidents occurring in the course of direct 
 the public traffic upon the railway belonging to such com- returns, 
 pany, whether attended with personal injury or not, in such 
 
 form and manner as the lords of the said committee shall 
 deem necessary and require for their information with a view 
 to the public safety; and if any such returns shall not be so 
 delivered within fourteen days after the same shall have 
 been required, every such company shall forfeit to her Ma- 
 jesty the sum of five pounds for every day during which the 
 said company shall neglect to deliver the same; and every 
 such penalty may be recovered in any of her Majesty's 
 courts of record, or in the courts of session or in any of the 
 sheriffs' courts in Scotland: provided always, tliat all such 
 returns shall be privileged communications, and shall not be 
 evidence in any court whatsoever. 
 
 IX. And whereas by an act passed in the second and Gates at 
 third years of her present Majesty, and intituled "An Act jn^^V'^u"^" 
 to amend an Act of the Fifth and Sixth Years of his late kept dosed 
 Majesty King William the Fourth relating to Highways," across the 
 it was enacted, that whenever a railway crosses or shall 9 .i^, 3 Vict, 
 hereafter cross any turnpike road, or any other highway or c. 45. 
 statute labour road for carts or carriages in Great Britain, 
 
 the proprietors or directors of the said railway shall make 
 and maintain good and sufficient gates across each end of 
 such turnpike or other road at each end of the said crossings, 
 an'l shall employ good and proper persons to open and shut 
 such gates, so that the persons, carts or carriages passing 
 along such turnpike or other road shall not be exposed to 
 any danger or damage by the passing of any carriages or 
 engines along the said railway: and whereas by tlie acts 
 relating to certain railways it is provided that such gates 
 shall be kept constantly closed across the railway, except 
 during the time when carriages or engines passing along
 
 xxxii Appendix — Statutes. 
 
 the railway shall have to cross such turnpike or other road: 
 and whereas experience has shown that it is more con 
 ductive to safety that such gates should be kept closed across 
 the turnpike or other road instead of across the railway ; be 
 it therefore enacted, that, notwithstanding any thing to the 
 contrary contained in any act of parliament heretofore 
 passed, such gates shall be kept constantly closed across 
 each end of such turnpike or other roads, in lieu of across 
 the railway, except during the time when horses, cattle, 
 carts or carriages passing along such turnpike or other 
 road shall have to cross such railway; and such gates shall 
 be of such dimensions and so constructed as, when closed 
 across the ends of such turnpike or other roads, to fence in 
 the railway, and prevent cattle or horses passing along the 
 road from entering upon the railway while the gates are 
 Proviso. closed : provided always, that it shall be lawful for the 
 lords of the said committee, in any case in which they are 
 satisfied that it will be more conducive for the public safety 
 that the gates at any level crossing over any such turnpike 
 or other road should be kept closed across the railway, to 
 order and direct that such gates should be kept so closed, 
 instead of across the road ; and such order of the lords of 
 the said committee shall be a sufficient authority for the 
 directors or proprietors of any railway company to whom 
 such order is addressed for keeping such gates closed, in 
 the manner directed by the lords of the said committee. 
 Riiinaycom- ^- And whereas it is expedient that further provision be 
 iianies to made for the safety of the public in respect of the fences of 
 mai^nt'a^n railways; be it enacted, that all railway companies shall be 
 fences. Under the same liability of obligation to erect, and to main- 
 
 tain and repair, good and sufficient fences throughout the 
 whole of their respective lines, as they would have been if 
 every part of such fences had been originally ordered to be 
 made under an order of justices by virtue of the provisions 
 to that effect in the acts of parliament relating to such rail- 
 M-ays respectively, 
 nisputes he- XI. That where two or more railway companies whose 
 riectine°" >i '■«i'l"'<iys have a common terminus or a portion of the same 
 v.ty^ to be h'le of rails in common, or which form separate portions of 
 decided by one continued line of railway communication, shall not be 
 trade! ""^ ^^^^ ^^ airree upon arrangements for conducting at such 
 common tormiiuis, or at the point of junction between them, 
 their joint tratbc with safety to the public, it shall be lawftd 
 for the lords of the said committee, upon the application of 
 either of the parties, to decide the questions in dispute l)e- 
 tween them, so far as the same relate to the safety of the
 
 5 S( G Vict. c. 55. xjsxiii 
 
 public, and to order and determine whether the whole or 
 what proportion of the expenses attending on such arrange- 
 ments shall be borne by either of the parties respectively ; 
 and if any railway company shall refuse or wilfully neglect 
 to obey any such order made upon or against such company 
 by the lords of the said committee pursuant to this provision, 
 such company shall forfeit to her Majesty the sum of twenty 
 pounds per day for every day during which such refusal or 
 neglect shall continue; and every such penalty may be re- 
 covered in any of her Majesty's courts of record, or in the 
 court of session or in any of the sheriffs' courts in Scotland. 
 
 XII. And whereas powers of laying down branch lines Powers of 
 opening into the ledges or Hanches of main lines of railway, making 
 and of entering upon and passing along such main lines municatton^" 
 with carriages and waggons drawn by locomotive engines, with raii- 
 
 or by other mechanical or animal power, and also powers ^^'^p-. ^'^^ «' 
 
 . , . , ^ entering 
 
 to form roads or railways across existing railways on a upon them 
 level, have been given by various acts relative to railways withlocomo- 
 to the owners or occupiers of lands adjoining the railway, Jo^be^regu!^' 
 and to other persons with their consent : and whereas ex- lated by the 
 perience has shown that the exercise of such powers without P^^'' °^ 
 limitation would in many cases be attended with danger to 
 the public using such railway ; be it therefore enacted, that 
 if, in the case of any railway on which passengers are con- 
 veyed by steam or other mechanical power, it shall appear to 
 the lords of the said committee that such power as aforesaid 
 caimot be so exercised without seriously endangering the 
 public safety, and that an arrangement may be made with 
 a due regard to existuig rights of property, it shall be lawful 
 for the lords of the said committee to order and direct that 
 such powers shall only be exercised subject to such con- 
 ditions as the lords of the said committee shall direct : pro- Defining a 
 vided always, that no railway shall be considered a passenger P^.^^enger 
 railway if two-thirds or more of the gross annual revenue 
 of such railway shall be derived from the carriage thereon 
 of coals, ironstone, or other metals or minerals. 
 
 XIII. And whereas in many cases railways liave been Alteration of 
 made to cross turnpike roads, liighways, and private roads '^^"g^'"''"''^ 
 and tramways on the level, and the companies to whom ings. 
 such railways belong would in some cases be willing, at 
 their own expense, to carry such roads and tramways over 
 or under such railways by means of a bridge or archway 
 for the greater safety of tlie public, but have no authority 
 80 to do : and whereas it would promote the public safety if 
 railway companies were enabled, under the sanction and au- 
 thority of the loi'dsof the said committee, to substitute bridges 
 B B 5
 
 xxxiv Appendix — Statutes. 
 
 or archways for such level crossings as aforesaid : be it there- 
 fore enacted, that in all cases where any railway company 
 shall be willing, at their own expense, to carry any turn- 
 pike road, highway, or private road or tramway over or 
 under their railway by means of a bridge or arch in lieu of 
 crossing the same on the level, it shall be lawful for the 
 lords of the said committee, on the application of the said 
 company, and after hearing the several parties interested, if 
 it shall appear to the lords of the said committee that such 
 level crossing endangers the public safety, and that the pro- 
 posal of tlie company does not involve any violation of ex- 
 isting rights or interests witliout adequate compensation, to 
 give the said company full power and authority for re- 
 moving the danger at their own expense, either by building 
 a bridge, or by such other arrangement as the nature of the 
 case shall require, subject to such conditions as the lords of 
 the said committee shall direct. 
 Power for XIV. And whereas it is essential for the public safety, 
 
 railway com- ^j^^j jj|gQ f^y ^}jg proper maintenance of railways in a state 
 p&nicM to . • 
 
 enter upon of efficiency for the public service, that railway companies 
 
 adjoining should have the power, in case of accidents or slips hap- 
 pa^r acci-"^*^" Pining or being apprehended to their cuttings and embank- 
 dents. ments or other works, to enter upon the lands adjoining 
 
 their respective railways, for the purpose of repairing or 
 renewing the same, and to do such works as may be neces- 
 sary for the purpose ; be it therefore enacted, that it shall 
 be lawful for the lords of the said committee to empower 
 any railway company, in case of any accident or slip hap- 
 pening or being apprehended te any cutting, embankment 
 or other work belonging to them, to enter upon any lands 
 adjoining their railway for the purpose of repairing or pre- 
 venting such accident, and to do such works as may be 
 necessary for the purpose : provided always, that in case of 
 necessity it sliall be lawful for any railway company to 
 enter upon such lands and do such works as aforesaid, 
 without having obtained the previous sanction 'of the lords 
 of the said committee ; but in every such case such railway 
 company shall, within forty-eight hours after such entry, 
 make a report to the lords of the said committee, specifying 
 the nature of such accident or apprehended accident, and 
 of the works necessary to be done, and such powers shall 
 cease and determine if the lords of the said committee shall, 
 after considering the said report, certify that their exercise 
 is not necessary for the public safety: provided also, that 
 such works shall be as little injurious to the said adjoining 
 lands as the nature of the accident or apprehended accident
 
 5 8f 6 Vict. c. 55. xxxv 
 
 will admit of, and shall be executed with all possible des- 
 patch ; and full compensation shall be made to the owners 
 and occupiers of such lands for the loss or injury or incon- 
 venience sustained by them respectively by reason of such 
 works, the amount of which compensation, in case of any 
 dispute about the same, shall be settled in the same manner 
 as cases of disputed compensation are directed to be settled 
 by the acts relating to the railway on which such works 
 may become necessary: provided always that no land shall 
 be taken permanently by any railway company for such 
 works without a certificate from the lords of the said com- 
 mittee as hereinafter described. 
 
 XV. And whereas by vai'ious acts relating to railways Compulsory 
 compulsory powers are given to railway companies of pur- ?°K^^'^^*''^J 
 chasing and taking lands for the construction of such rail- for the pur- 
 ways, and it is provided that such compulsory powers shall poses of 
 not be exercised after the expiration of certain limited gxtend^ed 
 periods from the passing of the said acts : and whereas it is where 
 sometimes found necessary for the public safety that ad- thought ne- 
 
 */ X ^ ^»f ccsssrv for 
 
 ditional land should be taken after the expiration of such safety by the 
 periods for the purpose of giving increased width to the board of 
 embankments and inclination to the slopes of railways, or t'"""'^- 
 for making approaches to bridges or archways, or for doing 
 such works for the repair or prevention of accidents as are 
 hereinbefore described; be it therefore enacted, that in every 
 case in which the lords of the said committee shall certify 
 that the public safety requires additional land to be taken 
 by any railway company for such purposes as aforesaid, the 
 compulsory powers of purchasing and taking land con- 
 tained in the act or acts of such railway company, together 
 with all the clauses and provisions relative thereto, shall, as 
 regards such portion or portions of land as are mentioned 
 in the certificate of the lords of the said committee, revive 
 and be in full force for such further period as shall be men- 
 tioned in such certificate : provided always, that any rail- 
 way company applying to the lords of the said committee 
 for any such certificate shall give fourteen days notice in 
 writing, in the manner prescribed by the act or acts of such 
 company for serving notices on land owners, of their in- 
 tentiont o make such application to all the parties interested 
 in such lands, or such of them as shall be known to the 
 company, and shall state in such notice the particulars of 
 the lands required ; and if any of such parties interested 
 shall apply within tlie said period of fourteen days to the 
 lords of the said committee, such party shall be heard by 
 them before any such certificate is given : provided also
 
 xxxvi Appendix — Statutes. 
 
 that where an)' such application sliall have been made by 
 any railway company to the lords of the said committee, 
 upon which application an)' such certificate shall have been 
 refused, the directors of such railway company shall, if re- 
 quired by the lords of the said committee, repay to the 
 party resisting such application any expenses which he or 
 they may have incurred in resisting such application. 
 Carriages of XVI. And whereas by various acts relating to railways 
 S""^^*^"" it is enacted, that no carriage or waggon shall carry or bear 
 
 fouf tons''" at any one time upon the railway (including the weight of 
 may be used such carriage) more than four tons, and experience has 
 on railways. gijQwn that it is in many cases more conducive to safety to 
 use a heavier description of carriage or waggon upon rail- 
 ways than was originally contemplated; be it therefore 
 enacted, that every provision contained in any such act or 
 acts respectively limiting the weight to be carried or borne 
 at any one time in any carriage or waggon upon any rail- 
 way (including the weight of such carriage or waggon) to 
 four tons shall be and the same is hereby repealed, and that, 
 notwithstanding any thing in any act contained, it shall be 
 lawful for any railway company to use and to permit to be 
 used upon any railway carriages or waggons carrying or 
 bearing (including the weight of such carriage) a greater 
 weight than four tons, subject to such regulations as may 
 from time to time be made and be in force pursuant to any 
 act or acts of parliament already or hereafter to be passed 
 in that behalf. 
 Punishment XV 11. And whereas by the said recited act for regulat- 
 or persons \j^^ railways, provision is made for thepunishment of serv- 
 
 employedon ^ r -i • -li. r • j i. j •.. • 
 
 railways «ints ot railway companies guilty ot misconduct, and it is 
 guiityof mis- expedient to extend such provision; be it enacted that it 
 conduct. shall be lawful for any officer or agent of any railway com- 
 pany, or for any special constable duly appointed, and all 
 such persons as they may call to their assistance, to seize 
 and detain any engine driver, waggon driver, guard, porter, 
 servant, or other person employed by the said or by any 
 other railway company, or by any other company or person, 
 in conducting traffic upon the railway belonging to the said 
 company, or in repairing and maintaining the works of the 
 said railway, who shall be found drunk while so employed 
 upon the said railway, wlio shall commit any offence against 
 any of the bye-laws, rules, or regulations of the said com- 
 pany, or who shall wilfully, maliciously, or negligently do 
 or omit to do any act whereby the life or limb of any per- 
 son passing along or being upon such railway or the works 
 thereof respectively shall be or might be injured or endan-
 
 5 (S- 6 Vict. c. 55. xxxvii 
 
 gered, oi* whereby the passage of any engines, carriages, or 
 trains shall be or might be obstructed or impeded, and to 
 convey such engine driver, guard, porter, servant, or other 
 person so offending, or any person counselUng, aiding, or 
 assisting in sucli ottence, with all convenient despatch be- 
 fore some justice of the peace for the place within which 
 such offence shall be committed, without any other warrant 
 or authority than this act; aud every such person so offend- 
 ing, and everyperson counselling, aiding, or assisting therein, 
 as aforesaid, shall, when convicted upon the oath of one or 
 more credible witness or witnesses before such justice as 
 aforesaid (who is hereby authorized and required, upon 
 complaint to him made upon oath, without information in 
 writing, to take cognizance thereof, and to act summarily 
 in the premises), in the discretion of such justice, be im- 
 piisoned, with or without hard labour, for any term not 
 exceeding two calendar months, or, in the like discretion of 
 such justice, shall for every such offence forfeit to her Ma- 
 jesty any sum not exceeding ten pounds, and in default of 
 payment thereof shall be imprisoned, with or without hard 
 labour, as aforesaid, for such period, not exceeding two 
 calendar months, as such justice shall appoint, such com- 
 mitment to be determined on payment of the amount of the 
 penalty; and every such penalty shall be returned to the 
 next ensuing court of quarter sessions in the usual manner. 
 
 XVIII. That, in all cases in which by the present or the ^, .^ . 
 
 . , . , „ , . ., •'..".,,. Sheriff'* to 
 
 said recited act tor regulating railways it is provided that have jurU- 
 
 offenders shall betaken before one or more justices of the diction in 
 peace for the place within which the offence was com- 
 mitted, it shall be lawful, in case the offence is committed 
 in Scotland, to take such offenders before the sheriff of the 
 county, or other magistrate acting for the district within 
 which such offence shall be committed, or where such 
 offender sliall be apprehended, without any warrant or 
 authority other than this act; and such sheriff or magistrate 
 is hereby empowered and required, on the application of 
 the railway company, to proceed in all respects as if the 
 words "sheriff or magistrate" had been substituted for the 
 word "justice" in the said acts, and shall be entitled sum- 
 marily, and without a jury, to execute the powers thereby 
 and hereby committed to him. 
 
 XIX. That all notices, returns, and other documents 
 required by this act or by the said recited act to be given to uonsT"a'iid: 
 or laid before the lords of the said committee shall be deli- from the 
 vered at or sent by the post to the office of the lords of the ''°"'''' '"^ . 
 said committee; and all notices, requisitions, orders, regu- service of
 
 xxxviii Appendix — Statutes. 
 
 notices, &c. latioiis, appointments, certificates, certified copies, and other 
 compauy/ documents in writing, signed by one of the seci'etaries of 
 the said committee, or by some officer appointed for that 
 purpose by the lords of the said committee, and purporting 
 to be made by the lords of the said committee, shall, foi 
 the purposes of this and of the said recited act, be deemed 
 to have been made by the lords of tlie said committee, and 
 that in the absence of evidence to the contrary, without 
 proof of the authority of the person signing the same or of 
 the signature thereto; and service of the same at one of 
 the terminal oftices of any railway company on the secre- 
 tary or clerk of the said company, or by sending the same 
 by post addressed to him at such office, shall be deemed 
 good service upon the said company. 
 Railway XX. That whenever it shall be necessary to move any of 
 
 companies the officers or soldiers of her Majesty's forces of the line, 
 mnitary°and ordnance corps, marines, militia, or the police force, by 
 police forces any railway, the directors thereof shall and are hereby re- 
 at prices to quired to permit such forces respectively, with their bag- 
 gage, stores, arms, ammunition, and other necessaries and 
 things to be conveyed at the usual hours of starting, at 
 such prices or upon such conditions as may from time to 
 time be contracted for between the secretary at war and 
 such railway companies for the conveyance of such forces, 
 on the production of a route or order for their conveyance 
 signed by the proper authorities. 
 Meaning of XXI. That, whenever the word " Railway" is used in 
 the words this or in the said recited act it shall be construed to apply 
 
 " ^".V^"^' to all railways used or intended to be used for the convey- 
 ainl ' Com- „ ■' . . , • 11 1 
 
 pany." ance of passengers m or upon carriages drawn or impelfed 
 
 by the power of steam or by any other mechanical power; 
 and whenever the word " Company " is used in this or in 
 the said recited act it shall be construed to extend to and 
 include the proprietors for the time being of any such rail- 
 way, whether a body corporate or individuals, and their 
 lessees, executors, administrators, and assigns,, unless in 
 either of the above cases tlie subject or context be repug- 
 nant to such construction. 
 Application XXII. That all penalties under this act, for the appli- 
 ot penalties- nation of which no special provision is made, shall be i"e- 
 covered in the name and for the use of her Majesty, in 
 the manner provided by the said recited act for regulating 
 railways. 
 Act may be XXIII. That this act may be amended or repealed by 
 repealed this any act to be passed in the present session of parliament.
 
 7 8(8 Vict. c. Sf). 
 
 7 & 8 Vict. c. 85. 
 
 An Act to attach certain Conditions to the Construction 
 of future Railways authorized or to be authorized 
 by avy Act of the present or succeeding sessions of 
 Parliament ; and for other Purposes in relation to 
 Railways. [9th August, 1844. J 
 
 Wiif REAS it is expedient that the concession of powers for 
 the estabhshment of new hnes of railway should be subjected 
 to such conditions as are hereinafter contained for the benefit 
 of the pubHc: Be it enacted by the Queen's most excellent 
 Majesty, by and with the advice and consent of the lords 
 spiritual and temporal, and commons, in this present par- 
 liament assembled, and by the authority of the same, that if 
 at any time after the end of twenty-one years from and If after 21 
 after the first day of January next after the passing of any f^e'^paasinV 
 act of the present or of any future session of parliament of the act 
 for the construction of any new line of passenger railway, '""■ "'*' ^°"' 
 whether such new line be a trunk, branch, or junction line, ^ Jy future 
 and whether such new line be constructed by a new com- railway, the 
 pany incorporated for the purpose or by any existing com- ^l"^^^ "^ly^" 
 pany, the clear annual profits divisible upon the subscribed per cent., ' 
 and paid up capital stock of the said railway, upon the ave- the Treasury 
 rage of the three then last preceding years, shall equal or [he^scale 0*^1 
 exceed the rate of ten pounds for every hundred pounds of toUs, and nx 
 such paid up capital stock, it shall be lawful for the lords " "'^"' '^'^''^*^- 
 commissioners of her Majesty's treasury, subject to the pro- 
 visions hereinafter contained, upon giving to the said com- 
 pany three calendar months notice in writing of their in- 
 tention so to do, to revise the scale of tolls, fares and charges 
 limited by the act or acts relating to the said railway, and to 
 fix such new scale of tolls, fares, and charges applicable to 
 sucli different classes and kinds of passengers, goods and 
 other traffic on such railway, as in the judgment of the said 
 lords commissioners, assuming the same quantities and kinds 
 of traffic to continue, shall be likely to reduce tlie said di- 
 visible profits to the said rate of ten pounds in the hundred: 
 Provided always, that no such revised scale shall take effect. Proviso, 
 unless accompanied by a guarantee to subsist as long as any 
 such revised scale of tolls, fares and charges shall be in 
 force, that the said divisible profits, in case of any deficiency 
 therein, shall be annually made good to the said rate often
 
 xl Appendix— Statutes. 
 
 pounds for every hundred pounds of such capital stock : 
 Provided also, that such revised scale sliall not be again 
 revised or such guarantee withdrawn, otherwise than with 
 the consent of the company, for the further period of twenty- 
 one years. 
 Option of II. That whatever may be the rate of divisible profits on 
 
 fut'ure'rail'^ any such railway, it shall be lawful for the said lords corn- 
 way, missioners, if they shall think fit, subject to the provisions 
 hereinafter contained, at any time after the expiration of the 
 said term of twenty-one years, to purchase any such rail- 
 way, with all its hereditaments, stock and appurtenances, 
 in the name and on behalf of her Majesty, upon giving to 
 the said company three calendar months notice in writing 
 of their intention, and upon payment of a sum equal to 
 twenty-five years purchase of the said annual divisible pro- 
 fits, estimated on the average of the three then next pre- 
 Proviso. ceding years : Provided that if the average rate of profits 
 for the said three years shall be less than the rate of ten 
 pounds in the hundred, it shall be lawful for the company, 
 if they shall be of opinion that the said rate of twenty-five 
 years purchase of the said average profits is an inadequate 
 rate of purchase of such railway, reference being had to 
 the prospects thereof, to require that it shall be left to arbi- 
 tration, in case of difference, to determine what (if any) 
 additional amount of purchase money shall be paid to the 
 said company : Provided also, that such option of purchase 
 shall not be exercised, except with the consent of the com- 
 pany, while any such revised scale of tolls, fares, and charges 
 shall be in force. 
 Existing^ \\\^ Provided always, that the option of revision or pur- 
 to'be'su'b-"° chase shall not be applied to any railway made or authorized 
 jected to the to be made by any act previous to the present session ; 
 options. jjj-jjj j]-j,j^ j^g branch or extension of less than five miles in 
 length of any such line of railway shall be taken to be a 
 new railway within the provisions of this act; and that the 
 said option of purchase shall not be exercised as regards 
 any branch or extension of any I'ailway, without including 
 such railway in the purchase, in case the proprietors thereof 
 shall require that the same be so included. 
 Reservation IV. And whereas it is expedient that the policy of re- 
 to P^'y- vision or purchase shall in no manner be prejudged by the 
 considera- provisions of this act, but should remain for the future con- 
 tion of future sideration of the legislature, u))on grounds of general and 
 gald to't")^' national policy : And whereas it is not the intention of this 
 suid options, act that under the said powers of revision or purchase, if 
 called into use, the public resources should be employed to 
 sustain an undue competition against any independent com-
 
 7 <^ 8 Vict. c. 85. xli 
 
 panj' or companies ; be it enacted, that no such notice 
 as hereinbefore mentioned, whether of revision or purchase, 
 shall be given until provision shall have been made by par- 
 liament, by an act or acts to be passed in that behalf, for 
 authorizing the guarantee or the levy of the purchase money 
 hereinbefore mentioned, as the case may be, and for de- 
 termining, subject to the conditions hereinbefore mentioned, 
 the manner in which the said options, or either of them, 
 shall be exercised ; and that no bill for giving powers to 
 exercise the said options, or either of them, shall be received 
 in either house of parliament, unless it be recited in the pre- 
 amble to such bill that three months notice of the intention 
 to apply to parliament for such powers has been given by 
 the said lords commissioners to the company or companies 
 to be affected thereby. 
 
 V. That from and after the commencement of the period 
 of three years next preceding the period at which the op- Accounts to 
 tion of revision or purchase becomes available, full and true tobeop'en'to 
 accounts shall be kept of all sums of money received and inspection, 
 paid on account of any railway within the provisions here- 
 inbefore contained (distinguishing, if the said railway shall 
 be a branch railway or one worked in common with other 
 railways, the receipts, and giving an estimate of the ex- 
 pences on account of the said railway, from tliose on account 
 of the trunk line, or other railways), by the directors of 
 the company to whom such railway belongs, or by whom 
 the same may be worked ; and every such railway com- 
 pany shall once in every half-year during the said period of 
 three years cause a half-yearly account in abstract to be pre- 
 pared, showing the total receipt and expenditure on account 
 of the said railway for the half-year ending the thirtieth 
 day of June and the thirty-first day of December, respec- 
 tively, or such other convenient days as shall in each case 
 be directed by the said lords commissioners under distinct 
 heads of receipt and expenditure, with a statement of the 
 balance of such account, duly audited and certified under 
 the liands of two or more directors of the said I'ailway com- 
 pany, and shall send a copy of the said account to the said 
 lords commissioners on or before the last days of August and 
 February, respectivel}', or such other days as shall in each 
 case be directed by tlie said lords commissioners, in each 
 year; and it shall be lawful for the said lords commission- 
 ers, if and when they shall think fit, to appoint any proper 
 person or persons to inspect the accounts and books of the 
 said company during the said period of three years; and it 
 sliall be lawful for any person so aiithorized, at all reason- 
 able times, upon producing his authority, to examine the
 
 xlii Appendix — Statutes. 
 
 % 
 books, accounts, vouchers, and other documents of the com- 
 pany at the principal office or place of business of the com- 
 pany, and to take copies or extracts therefrom. 
 
 VI. And whereas it is expedient to secure to the poorer 
 class of travellers the means of travelling by railway at 
 Companies moderate fares, and in carriages in which they may be pro- 
 to provide tected from the weather ; be it enacted, that on and after 
 train each *^^ several days hereinafter specified, all passenger railway 
 way daily, companies which shall have been incorporated by any act 
 of the present session, or which shall be hereafter incorpo- 
 rated, or which by any act of the present or any future 
 session have obtained or shall obtain, directly or indirectly, 
 any extension or amendment of the powers conferred on 
 them respectively by their previous acts, or have been or 
 shall be authorized to do any act unauthorized by the pro- 
 visions of such previous acts, shall, by means of one train, 
 at the least, to travel along their railwaj' from one end to 
 the other of each trunk, branch, or junction line, belonging 
 to or leased by them, so long as they shall continue to carry 
 otlier passengers over such trunk, branch, or junction line, 
 once at the least each way on every week da)', except 
 Christmas day and Good Friday (such exception not to ex- 
 tend to Scotland), provide for the conveyance of third class 
 passengers to and from the terminal and other ordinary pas- 
 senger stations of the railway, under the obligations con- 
 tained in their several acts of parliament, and with the 
 immunities applicable by law to carriers of passengers by 
 railway ; and also under the following conditions (that is 
 to say) : 
 
 Such train shall start at an hour to be from time to 
 time fixed by the directors, subject to the approval of 
 the lords of the committee of privy council for trade 
 and plantations: 
 Such train shall travel at an average rate of speed 
 not less than twelve miles an hour for the whole dis- 
 tance travelled on the railway, including stoppages : 
 Such train shall, if required, take up and set down pas- 
 sengers at every passenger station which it shall 
 pass on the line : 
 The carriages in which passengers shall be conveyed 
 by such train shall be provided with seats, and shall 
 be protected from the weather, in a manner satisfac- 
 tory to the lords of the said committee. 
 The fare or charge for each third class passenger by 
 such train shall not exceed one penny for each mile 
 travelled :
 
 7 8( SYict. C.S5. xliii 
 
 Each passenger by such train shall be allowed to take 
 with him half a hundred weight ofluggage, not being 
 merchandize or other articles carried for hire or pro- 
 fit, without extra charge ; and any excess of luggage 
 shall be charged by weight, at a rate not exceeding 
 the lowest rate of charge for passengers' luggage by 
 other trains : 
 Children under three years of age accompanying pas- 
 sengers by such train shall be taken without any 
 charge; and children of three years and upwards, 
 but under twelve years of age, at half the charge 
 for an adult passenger : 
 And with respect to all railways subject to these obligations 
 which shall be open on or before the first day of November 
 next, these obligations shall come into force on the said first 
 day of November; and with respect to all other railways 
 subject to these obligations, they shall come into force on 
 the day of opening of the railway, or the day after the last 
 day ot the session in which the act shall be passed, by 
 reason of which the company will become subject there- 
 unto, which shall first happen. 
 
 VII. That if any railway company shall refuse or wilfully 
 neglect to comply with the provisions of this act as to the 
 said cheap trains within a reasonable time, or shall attempt 
 to evade the operation of such order, such company shall Penalty for 
 forfeit to her Majesty a sum not exceeding twenty pounds "^"-conipli- 
 for every day during which such refusal, neglect, or evasion 
 shall continue. 
 
 VIII Provided always, and be it enacted, That except 
 as to the amount of fare or charge for each passenger by 
 such cheap trains, wdiich shall in no case exceed the rates 
 herein-before in such case provided, the lords of the said Board of 
 committee shall have a discretionary ])ower, upon the appli- '""^'^^ '° 
 cation of any railway company, of dispensing with any cretionary" 
 of the conditions herein-before required in regard to the power of 
 conveyance of passengers by such cheap trains as aforesaid, ai'J°Jn'aUve 
 in consideration of such other arrangements, either in regard arrange- 
 to speed, covering from the weather, seats, or other particu- ments. 
 lars, as to the lords of the said committee shall appear 
 more beneficial and convenient for the passengers by such 
 cheap trains under the circumstances of the case, and shall 
 be sanctioned by them accordingly ; and any railway com- 
 pany which shall conform to such other conditions as shall 
 be so sanctioned by tlie lords of the said committee shall 
 not be liable to any jjcnalty for not observing the conditions 
 which shall have been so dispensed with by the lords of the
 
 xliv Appendix — Statutes. 
 
 said committee in regard to the said cheap trains and the 
 
 passengers conveyed thereby. 
 When no tax IX. That no tax (e) shall be levied upon the receipts of 
 o e evied. ^ny railway company fromthe conveyance of passengers at 
 
 fares not exceeding one penny for each mile by any such 
 
 cheap train as aforesaid. 
 WTiere corn- ^- That whenever any railway com.pany subject to the 
 paiiies run herein-before-mentioned obligation of running cheap trains 
 Sunday" "^^ shall, from and after the days herein-before specified on 
 cheap trains which the Said obligation is to accrue, run any train or 
 to be tike- trains on Sundays for the conveyance of passengers, it 
 vided. shall, under the obligations contained in its act or acts of 
 
 parliament, and with the immunities applicable by law to 
 
 carriers of passengers by railway, by such train each way, 
 
 on every Sunday, as shall stop at the greatest number of 
 
 (e) This tax is now 5 percent, upon the fares. It is under the 
 management of the commissioners of stamps and taxes, and is 
 to be deemed a stamp duty (5 & 6 Vict. c. 79, s. 2). That 
 act, s. 1 , repeals the duties granted by 2 & 3 Will. 4, c. 120, in 
 respect of railway passengers. 
 
 Railway proprietors, &c., are to keep an account of all 
 monies received or charged by them daily for the conveyance of 
 passengers, whether upon their own or other railways, and 
 this in such manner and form as the commissioners of stamps 
 and taxes may direct or approve. They are also to keep like 
 accounts of sums paid or accounted for, &c., to such other rail- 
 ways, as their share of the fiires (sec. 4) ; as is also to be done 
 by the proprietors of the latter with regard to all sums paid or 
 accounted for to them. Copies of such accounts are to be 
 delivered to the commissioners of stamps and taxes, within 
 five days after the first Monday in every calendar month, 
 verified by affidavit, and the duties are to be paid accordingly 
 (sec. 4). Sums paid for duties upon fares of other railway 
 companies may be deducted from the payments made to 
 them (s. 5). Jiooks containing such accounts are to be open 
 for the inspection of officers of stamps, who are to be at 
 liberty to make extracts, &c., and the railway company must 
 permit such inspection, &c., under a penalty of £50 for each 
 refusal (sec. 6); railway proprietors, &c., before they carry 
 passengers, are to give bond with sureties conditioned for 
 securing the compliance with these provisions under a penalty 
 of £100, and a like further penalty for every day during the 
 period that the omission, &c., continues. Simdar penalties are 
 inflicted on companies permitting other companies to carry on 
 their line without first giving such bond, &c. The bond in 
 certain cases must be renewed under the pain of like penalties 
 in cases of refusal, ace. (sect. 7).
 
 7 .^ 8 Vict. c. 85. xlv 
 
 stations, provide sufficient carriages for tlie conveyance of 
 third class passengers at the terminal and other stations at 
 which such Sunday train may ordinarily stop ; and the fare 
 or charge for each third class passenger hy such train shall 
 not exceed one penny for each mile travelled. 
 
 XI. And whereas by an act passed in the second year Railway 
 of the reign of her Majesty, intituled '• An Act to provide companies to 
 for the Conveyance of the Mails by Railways, " provision tional facili- 
 was made for the transmission of the mails by railwaj-, and ties for the 
 it is expedient that such provision should be extended : t^nsmission 
 1 • 1 mi • 1 II 1 1 p 1 /■ 1 of the mails. 
 
 be it enacted, Ihat it snail be lavvrul for the postmaster- i & 2 Vict. 
 
 general to require, in the manner and subject to the condi- ^- ^^^ 
 tions as to payment for service performed prescribed by the 
 said act, that the mails be forwarded upon any such railvva}' 
 as is herein-before last mentioned at any rate of speed which 
 the inspector-general of railways for the time being shall 
 certify to be safe, not exceeding twenty-seven miles in the 
 hour including stoppages ; and it shall be also lawful for 
 the postmaster-general to send any mail guard with bags 
 not exceeding the weight of luggage allowed to any other 
 passenger (or subject to the general rules of the company 
 for any excess of that weight) by any trains other than a 
 mail train, upon the same conditions as any other passen- 
 ger; provided that in such last-mentioned case nothing 
 herein or in the last recited act contained shall be construed 
 to authorize the postmaster-general to require the conver- 
 sion of a regular mail train into an ordinary train, or to 
 exercise any control over the company in respect of any 
 ordinary train, nor shall the company be responsible for 
 the safe custody or delivery of any mail bags so sent. 
 
 XII. And whereas by an act passed in the sixth year of ^"taincom- 
 the reign of her Majesty, intituled " An Act for the better convey mi- 
 Regulation of Railways, and for the Conveyance of litary and 
 
 Troops," it was among other things enacted, that whenever po'l^e forces 
 . , ',, , ° /• 1 n^ IT at certain 
 
 it shall be necessary to move any ot the oiticers or soldiers charges, 5 & 
 of her Majesty's forces of the line, ordnance corps, marines, ^ Vict. c. 5.5. 
 militia, or the police force, by any railway, the directors 
 thereof shall and are hereby required to permit such forces 
 respectivelj', with their baggage, stores, arms, ammunition, 
 and other necessaries and things, to be conveyed at the 
 usual hours of starting, at such prices or upon such condi- 
 tions as may from time to time be contracted for between 
 the secretary at war and such railway companies for the 
 conveyance of such forces, on the production of a route or 
 order for their conveyance signed by the proper authorities: 
 And whereas it is expedient to amend such provisions in 
 regard to the prices and conditions of conveyance by any
 
 ixvi Appendix — Statutes. 
 
 new railway or any railway obtaining new powers from 
 parliament; be it enacted, That all railway companies 
 which have been or shall be incorporated by any act of the 
 present or any future session, or which by any act of the 
 present or any future session shall have obtained or shall 
 obtain any extension or amendment of the powers conferred 
 by their previous acts or any of them, or have been or shall 
 be authorized to do any act unauthorized by the provisions 
 of such previous acts, shall be bound to provide such con- 
 veyance as aforesaid for the said military, marine, and police 
 forces, at fares not exceeding two-pence per mile for each 
 commissioned oflicer proceeding on duty, such officer being 
 entitled to conveyance in a first class carriage, and not 
 exceeding one penny for each mile for each soldier, marine, 
 or private of the militia or police force, and also for each 
 wife, widow, or child above twelve years of age of a soldier 
 entitled by act of parliament or by competent authority to 
 be sent to their destination at the public expense, children 
 under three years of age so entitled being taken free of 
 charge, and children of three years of age or upwards, 
 but under twelve years of age, so entitled, being taken at 
 half the price of an adult; and such soldiers, marines, and 
 privates of the militia or police force, and their wives, 
 widows, and children so entitled, being conveyed in 
 carriages which shall be provided with seats, with sufficient 
 space for the reasonable accommodation of the persons 
 conveyed, and which shall be protected against the weather; 
 provided that every officer conveyed shall be entitled to 
 take with him one hundred weight of personal luggage 
 without extra charge, and every soldier, marine, private, 
 wife, or widow, shall be entitled to take with him or her 
 half a hundred weight of personal luggage without extra 
 charge, all excess of the above weights of personal luggage 
 being paid for at the rate of not more than one half-penny 
 per pound, and all public baggage, stores, arms, ammuni- 
 tion, and other necessaries and things (except gunpowder 
 and other combustible matters, which the company shall 
 only be bound to convey at such prices and upon such 
 conditions as may be from time to time contracted for 
 between the secretary at war and the company), shall be 
 conveyed at charges not exceeding two pence per ton per 
 mile, the assistance of the military or other forces being 
 given in loading and unloading such goods. 
 Companies XIII. And whereas electrical telegraphs have been 
 toallowiines gjjtalj^gljg^ on certain railways, and may be more exten- 
 o e ec nca ^j^^jy established hereafter, and it is expedient to provide
 
 7 8< 8 Vict. c. 85. Ixvii 
 
 for their due regulation ; be it enacted, That every railway telegraph to 
 company, on being required so to do by the lords of the bfjg'^^ej' 
 saidcomniittee, shall be bound to allow any person or per- 
 sons authorized by the lords of the safd committee, with 
 servants and workmen, at all reasonable times to enter into 
 or upon their lands, and to establish and lay down upon 
 such lands adjoining tlie line of such railway a line of 
 electrical telegraph for her Majesty's service, and to give 
 to him and them every reasonable facility for laying down 
 the same, and for using the same for the purpose of receiv- 
 ing and sending messages on her Majesty's service, subject 
 to such reasonable i-emuneration to the company as maybe 
 agreed upon between the company and the lords of the said 
 committee, or in case of disagreement as may be settled by 
 arbitration : provided always, that, subject to a prior right 
 of use thereof for the purposes of her Majesty, such tele- 
 gi'aph may be used by the company for the purposes of the 
 railway, upon such terms as may be agreed upon between 
 the parties, or in the event of ditTerence, as may be settled 
 by arbitration. 
 
 XIV. That where a line of electrical telegraph shall Electrical 
 have been established upon any railway by the company to established 
 whom such railway belongs, or by any company, partner- by private 
 ship, person or persons, otherwise than exclusively for her ^^'*'^^^ "i^ig^ 
 Majesty's service, or exclusively for the purposes of the public, 
 railway, or jointly for both, the use of such electrical tele- 
 graph for the purpose of receiving and sending ftiessages, 
 shall, subject to the prior right of use thereof for the service 
 of her Majesty and for the purposes of the company, and 
 subject also to such equal charges and to such reasonable 
 regulations as may be from time to time made by the said 
 railway company, be open for the sending and receiving 
 of messages by all persons alike, without favour or pre- 
 ference. 
 
 XV. And whereas by an act passed in the fourth year Appoint- 
 of the reign of her Majesty, intituled "An Act to regulate ^ecto«b"y 
 Railways," power is given to the lords of the said com- board of 
 mittee to appoint any proper person or persons to inspect ^Tf"^^' ^ ^ ■* 
 any railway, and the stations, works, and buildings, and 
 the engines and carriages belonging thereto ; and in order 
 to carry the provisions of this act into execution, it is ex- 
 pedient that the said power be extended ; be it enacted, 
 That the said power given to the lords of the said com- 
 mittee of appointing proper persons to inspect railways 
 shall extend to authorize the appointment by the lords of 
 the said committee of any proper person or pei'sons, for
 
 xlviii 
 
 Repealing 
 provision of 
 3 & 4 Vict, 
 c. y;. 
 
 If railway 
 companies 
 
 Appendix — Statutes. 
 
 such purposes of inspection as are by the said act autho- 
 rized, and also for the purpose of enabling the lords of 
 the said committee to carry the provisions of this and of 
 the said act and of any general act relating to railways 
 into execution ; and that so much of the last-recited act as 
 provides that no person shall be eligible to the appointment 
 as inspector who shall, within one year of his appointment, 
 have been a director, or have held any office of trust or 
 profit under any railway company, shall be repealed : 
 provided always, that no person to be appointed as afore- 
 said shall exercise any powers of interference in the affairs 
 of the company. 
 
 XVI. And whereas by the said act of the fourth year of 
 the reign of her Majesty, intituled "An Act for regulating 
 Railways," it is among other things enacted, that whenever 
 it shall appear to the lords of the said committee that any 
 of the provisions of the several acts of parliament regulating 
 any railway companies, or the provisions of that act, have 
 not been complied with on the part of any of the said 
 companies or au}^ of their officers, and that it would be for 
 the public advantage that the due performance of the same 
 should be enforced, the lords of the said committee shall 
 certify the same to her Majesty's attorney-general for Eng- 
 land or Ireland, or to the lord advocate for Scotland, as the 
 case may require ; and thereupon the said attorney-general 
 or lord advocate shall, by information, or by action, bill, 
 plaint, suit at law or in equity, or other legal proceeding 
 (as the case may require), proceed to recover such penalties 
 and forfeitures, or otherwise to enforce the due performance 
 of the said provisions, by such means as any person 
 aggrieved by such non-compliance, or otherwise authorized 
 to sue for such penalties, might employ under the pro- 
 visions of the said acts ; provided always that no such 
 certificate as aforesaid shall be given by the lords of the 
 said committee until twentj'-one days after they shall have 
 given notice of their intention to give the same to the com- 
 pany against or in relation to whom they shall intend to 
 give the same : and whereas it is expedient that more 
 effectual provision should be made, not only for enforcing 
 a compliance on the part of railway companies with the 
 provisions of their acts, but also for restraining railway 
 companies from perfonning acts unauthorized by such pro- 
 visions ; be it enacted, That so much of the said act as is 
 herein-before recited shall be repealed. 
 
 XVII. That whenever it shall appear to the lords of the 
 said committee that any of the provisions of the several
 
 7 .^ 8 Vict. c. 85. xlix 
 
 acts of parliament regulating any railway company, or the contravene 
 provisions of this act or of any general act relating to rail- the^provi- 
 ways, have not been complied with on the part of any rail- sions of their 
 way company or any of its officers, or that any railway ^^'^' "j^ °^^ 
 company has acted or is acting in a manner unauthorized act, the 
 by the provisions of the act or acts of parliament relating to board of 
 snch railway, or in excess of the powers given and objects '/J'r iffy "the 
 defined by the said act or acts, and it shall also appear to same to the 
 the lords of the said committee that it would be for the ^""J'"^^/^" 
 public advantage that the company should be restrained from „ho shall" 
 so acting, the lords of the said committee shall certify the proceed 
 same to her Majesty's attorney-general for England or Ire- tfemf' 
 land, or to the lord advocate for Scotland, as the case may 
 require ; and thereupon the said attorney-general or lord 
 advocate sliall, in case such default of the railway company 
 shall consist of non-compliance with the provisions of the 
 act or acts relating thereto or of tliis act, or of any general 
 act relating to railways, proceed by information, or by ac- 
 tion, bill, plaint, suit at law or in equity, or other legal pro- 
 ceeding, as the case may require, to recover such penalties 
 and forfeitures, or otherwise to enforce the due performance 
 of the said provisions, by such means as any person ag- 
 grieved by such non-compliance, or otherwise authorized to 
 sue for such penalties, might employ under the provisions 
 of the said acts ; and in case the default of the railway com- 
 pany shall consist in the cominission of some act or acts 
 unauthorised by law, then the said attorney-general or lord 
 advocate, upon receiving such certificate as aforesaid, shall 
 proceed by suit in equity, or such other legal proceeding as 
 the nature of the case may require, to obtain an injunction 
 or order (which the judge in equity or other judge to whom 
 the application is made shall be authorized and required to 
 grant, if he shall be of opinion that the act or acts of the 
 railway company complained of is or are not authorized by 
 law), to restrain the company from acting in such illegal 
 manner, or to give such other relief as the nature of the 
 case may require. 
 
 XVIII. Provided always, and be it enacted, that no Notice to be 
 
 sucli certificate as aforesaid shall be given by the lords of S"'^" '° **^^ 
 1 • 1 • •! 1 !• 1 1 11 company, 
 
 the said committee until twenty-one clays after tney snail 
 
 have given notice to the company against or in relation to 
 
 whom they shall intend to give such certificate of their 
 
 intention to give such certificate ; and that no legal pro- Prosecutions 
 
 ceedings shall be commenced under the authority of the Ji!A^„"!!.'^" 
 , 1 °„ , . , . . ., ■^ the sanction 
 
 lords 01 the said committee against any railway company of the board 
 
 for any offence against any of the several acts relating to of trade, and 
 
 c c
 
 1 I Appendix — Statutes. 
 
 within one railways or this act, or any general acts relating to railways, 
 offen'eef'^' ^ except i3pon such certificate of the lords of the said com- 
 mittee as aforesaid, and within one year after such oiFence 
 shall have been committed. 
 Issue of loan XIX. And whereas many railway companies have bor- 
 notesand rowed money in a manner unauthorized by their acts of 
 securitiet^by incorporation or other acts of parliament relating to the 
 railway com- said companies, upon the security of loan notes or other 
 P?"'" P''°" instruments purporting to give a security for the repayment 
 of the principal sums borrowed at certain dates, and for the 
 payment of interest thereon in the meantime : and whereas 
 such loan notes or other securities issued otherwise than 
 under the provision of some act or acts of parliament have 
 no legal validity, and it is expedient that the issue of such 
 illegal securities should be stopped; but such loan notes or 
 other securities having been issued and received in good 
 faith as between the borrower and lender, and for the most 
 part for the lawful purposes of the undertaking, and in ig- 
 norance of their legal invalidity, it is expedient to confirm 
 such as have been already issued ; be it enacted, that from 
 and after the passing of this act any railway company issu- 
 ing any loan note or other negotiable or assignable instru- 
 ment purporting to bind the company as a legal security 
 for money advanced to the said railway company otherwise 
 than under the provisions of some act or acts of parliament 
 authorizing the said railway company to raise such money 
 and to issue such security, shall for every such offence for- 
 feit to her Majesty a sum equal to the sum for which such 
 loan note or other instrument purports to be such security : 
 Loan notes provided always, that any company may renew any such 
 already is- Joan note or other instrument issued by them prior to the 
 renewed. passing of this act for any period or periods not exceeding 
 
 five years from the passing of this act. 
 ai°eady°ist^ ^X. That where any railway company, before the twelfth 
 .sued to be day of July, one thousand eight hundred and forty-four, 
 paid when shall have issued or contracted to issue any such loan notes 
 or other unauthorized instruments, the company may and 
 shall pay off such loan notes or other instruments as the 
 same may fall due, subject as herein-before provided; and 
 until the same shall be so paid off the said loan notes or 
 other instruments shall entitle the holders thereof to the 
 payment by the company of the principal sum and interest 
 thereby agreed to be paid. 
 Register of XXI. That a register of all such loan notes or other 
 loan notes, instruments shall be kept by the secretary ; and such regis- 
 ter shall be open, without fee or reward, at all reasonable
 
 7^8 Vict. c. 85. H 
 
 times, to the inspection of any shareholder or auditor of 
 the undertaking, and of every person interested in any such 
 loan note or other instrument desirous of inspecting the 
 same. 
 
 XXII. And whereas the remedies now in force for the Remedy for 
 recovery of tithe commutation rent-charges are in many ^fcovery of 
 instances ineffectual for such parts thereof as are charged charged on 
 upon lands taken for the purposes of a railway, and it is railway land, 
 therefore expedient to extend the said remedies when the 
 
 said rent-charges may have been duly apportioned ; be it 
 enacted, that in all cases in which any such rent-charge, or 
 part of any rent-charge, has been or hereafter shall be duly 
 apportioned under the provisions of the acts for the com- 
 mutation of tithes in England and Wales, upon lands taken 
 or pui'chased by any railway company for the purposes of 
 such company, or upon any part of such lands, it shall be 
 lawful for every person entitled to the said rent-charge or 
 parts of such rent-charge, in case the same has been or shall 
 be in arrear and unpaid for the space of twenty-one days 
 next after any half-yearly day fixed for the payment thereof, 
 to distrain for all arrears of the said rent-charge upon the 
 goods, chattels, and effects of the said company, whether on 
 the land charged therewith, or any other lands, premises, or 
 hereditaments of such company, whether situated in the same 
 parish or elsewhere, and to dispose of the distress when 
 taken, and otherwise to demean himself in relation thereto, 
 as any landlord may for arrears of rent reserved on a lease 
 for years ; provided always, that nothing herein-contained 
 shall give or be construed to give a legal right to such rent- 
 charge, when but for this act such rent-charge was not or 
 could not be duly apportioned. 
 
 XXIII. That all notices, requisitions, orders, regula- communU 
 tions, appointments, certificates, certified coj)ies, and other cations to 
 documents in writing, signed by some officer appointed for u"'^?°^ 
 that purpose by the lords of the said committee, shall for trade, ser- 
 the purposes of this act be deemed to have been made by vice of no- 
 the lords of the said committee ; and all certificates of any ''' 
 thing done by the lords of the said committee in relation to 
 
 this act, and certified copies of the miiuites of proceedings 
 or correspondence of the lords of the said committee in 
 relation thereto, signed by such officer, shall be deemed 
 sufficient evidence thereof, and that in the absence of evi- 
 dence to the contrary, witliout proof of the authority of the 
 person signing the same or of the signature thereto, and 
 service of the same at one of the principal offices of any 
 railway company on the secretary or clerk of the said com- 
 cc2
 
 lii 
 
 Interpreta- 
 tion of act. 
 
 Act maybe 
 amended 
 this session, 
 
 Appendix — Statutes. 
 
 pany, or by sending the same by post, addressed to bini at 
 such office, shall be deemed good service upon the said 
 company ; and all notices, returns, and other documents 
 required by this act to be givea to or laid before the lords 
 of the said committee, shall be delivered at or sent by post 
 addressed to the office of the lords of the said committee. 
 
 XXIV. That all penalties under this act for the appli- 
 cation of which no special provision is made shall be reco- 
 vered in the name and for the use of her Majesty, and may 
 be recovered in any of her Majesty's courts of record, or m 
 the court of session or in any of the sheriff courts in Scot- 
 land. 
 
 XX\^. That where the word "Railway" is used in this 
 act it shall be construed to extend to railways constructed 
 under the powers of any act of parliament ; and when the 
 words " Passenger Railway " are used in this act, they 
 shall be construed to extend to railways constructed under 
 the powers of any act of parliament upon which one third 
 or more of the gross annual revenue is derived from the 
 conveyance of passengers by steam or other mechanical 
 power; and whenever the word "Company" is used in 
 this act it shall be construed to extend to include the pro- 
 prietors for the time being of any such railway ; and that 
 where a different sense is not expressly declared, or does 
 not appear by the context, every word importing the sin- 
 gular number or the masculine gender shall be taken to 
 include females as well as males, and several persons and 
 things as well as one person or thing. 
 
 XXVI. That this act may be amended or repealed by 
 any act to be passed in this session of parliament.
 
 8 Vict. c. 16 — Companies Clauses. liii 
 
 8 Vict. c. 16. 
 
 A71 Act for consolidating in one Act certain Provisiotis 
 usually inserted in Acts with respect to the Con- 
 stitution of Companies incorporated for carrying on 
 Undertakings of a public Nature. 
 
 [8th May, 1845.] 
 
 Whereas it is expedient to comprise in one general act 
 sundry pi-ovisions relating to tlie constitution and manage- 
 ment of joint stock companies, usually introduced into acts 
 of parliament authorizing the execution of undertakings of 
 a public nature by such companies, and that as well for the 
 purpose of avoiding the necessity of repeating such pro- 
 visions in each of the several acts relating to such under- 
 takings as for ensuring greater uniformity in the provisions 
 themselves : May it therefore please your Majesty that it 
 may be enacted, and be it enacted by the Queen's most 
 excellent Majesty, by and with the advice and consent of 
 the lords spiritual and temporal, and commons, in this pre- 
 sent parliament assembled, and by the authority of the same, 
 That this act shall apply to every joint stock company whicli Act to apply 
 shall by any act which shall hereafter be passed be incorpo ^° all compa- 
 rated for the purpose of carrying on any undertaking, and porated by 
 this act shall be incorporated with such act ; and all the acts hereaf- 
 clauses and provisions of this act, save so far as they shall pa'gjgd''^ 
 be expressly varied or excepted by any such act, shall apply 
 to the company which shall be incorporated by such act, 
 and to the undertaking for carrying on which such com- 
 pany shall be incorporated, so far as the same shall be ap- 
 plicable thereto respectively ; and such clauses and pro- 
 visions, as well as the clauses and provisions of every other 
 act which shall be incorporated with such act, shall, save as 
 aforesaid, form part of such act, and be construed together 
 therewith as forming one act. 
 
 2. And with respect to the construction of this act, and interpreta- 
 of other acts to be incorporated therewith, be it enacted as *',?".* '" *^'^ 
 follows : 
 
 The expression "the special act" used in this act shall "the special 
 be construed to mean any act which shall be hereafter '"•■' •" 
 passed incorporating a joint stock company for the purpose 
 of carrying on any undertaking, and with which this act "pre- 
 shall be so incorporated as aforesaid ; and the word " pre- ^"^^^ '■
 
 Kv 
 
 " the under- 
 taking." 
 
 Interpreta. 
 tions in this 
 and the spe- 
 cial act : 
 
 Number : 
 
 Gender: 
 
 ' Lands:" 
 
 " Lease :" 
 "Month:" 
 " Superior 
 courts :" 
 
 ' Oath :' 
 
 " County :" 
 
 'Justice ; 
 
 " Two jus- 
 tices :" 
 
 " The com- 
 pany. " 
 
 "Directors." 
 
 Appendix — Statutes. 
 
 scribed " used in this act, in reference to any matter herein 
 stated, shall be construed to refer to such matter as the same 
 shall be prescribed or provided for in the special act; and 
 the sentence in which such word shall occur shall be con- 
 strued as if instead of the word "prescribed" the expression 
 "prescribed for that purpose in the special act" had been 
 used ; and the expression " the undertaking " shall mean 
 the undertaking or works, of whatever nature, which shall 
 by the special act be authorized to be executed. 
 
 3. The following words and expressions both in this and 
 the special act shall have the several meanings hereby as- 
 signed to them, unless there be something in the subject or 
 the context repugnant to such construction ; (that is to say). 
 Words importing the singular number onl)' shall include 
 the plural number; and words importing the plural 
 number only shall include the singular number : 
 Words importing the masculine gender only shall include 
 
 females : 
 The word "lands" shall extend to messuages, lands, 
 
 tenements, and hereditaments of any tenure : 
 The word " lease " shall include an agreement for a lease: 
 The word " month " shall mean calendar month : 
 The expression " superior courts " shall mean her Ma- 
 jesty's superior courts of record at Westminster or Dub- 
 lin, as the case may require : 
 The word " oath " shall include affirmation in the case of 
 Quakers, or other declaration lawfully substituted for 
 an oath in the case of any other persons exempted by 
 law from the necessity of taking an oath : 
 The word " county " shall include any riding or other 
 like division of a county, and shall also include county 
 of a city or county of a town : 
 The ward "justice" shall mean justice of the peace acting 
 for the county, city, borough, liberty, cinque port, or 
 other place where the matter requiring the cognizance 
 of any such justice shall arise, and who shall not be inter- 
 ested in the matter ; and where any matter shall be 
 authorized or required to be done by two justices, the 
 expression " two justices" shall be understood to mean 
 two justices assembled snd acting together in petty 
 sessions : 
 The expression " the company " shall mean the company 
 
 constituted by the special act : 
 The expression " the directors " shall mean the directors 
 of the company, and shall include all persons having 
 the direction of the undertaking, whether under the
 
 8 Vict. c. 16 — Companies Clauses. Iv 
 
 name of directors, managers, committee of manage- 
 ment, or under any other name : 
 
 The word "shareholder" shall mean shareholder, pro- "Share- 
 prietor, or member of the company; and in referring l^oWers.-" 
 to any such shareholder, expressions properly appli- 
 cable to a person shall be held to apply to a corporation : 
 and 
 
 The expi'ession "the secretary " shall mean the secretary "Secretary." 
 of the company, and shall include the word " clerk." 
 
 4. And be it enacted. That in citing this act in other acts short title of 
 of parliament and in legal instruments it shall be sufficient ^^^ ^'^t- 
 
 to use the expression " The Companies Clauses Consolida- 
 tion Act, 1845." 
 
 5. And whereas it may be convenient in some cases to Form in 
 
 incorporate with acts of parliament hereafter to be passed ^y'^''-*' P°^-. 
 
 '■ ,. 1 /. . 1 '■ . . !• .1 ■ . 1 • , tions of this 
 
 some portion only oi the provisions oi this act: be it there- act may be 
 
 fore enacted, That for the purpose of making any such incorporated 
 
 incorporation it shall be sufficient in any such act to enact ^"[g^ °* ^^ 
 
 that the clauses and provisions of this act, with respect to 
 
 the matter so proposed to be incorporated (describing such 
 
 matter as it is described in this act in the words introductory 
 
 to the enactment with respect to such matter), shall be 
 
 incorporated with such act : and thereupon all the clauses 
 
 and provisions of this act with respect to the matter so 
 
 incorporated shall, save so far as they shall be expressly 
 
 varied or excepted by such act, form part of such act, and 
 
 such act shall be construed as if the substance of such 
 
 clauses and provisions were set forth therein with reference 
 
 to the matter to which such act shall relate. 
 
 And with respect to the distribution of the capital of the Distribution 
 company into shares, be it enacted as follows : of Capital. 
 
 6. The capital of the company shall be divided into Capital to be 
 shares of the prescribed number and amount; and such g^^'^g^J^ '"*° 
 shares shall be numbered in arithmetical progression, be- 
 ginning with number one ; and every such share shall be 
 distinguished by its appropriate number. 
 
 7. All shares in the undertaking shall be personal estate. Shares to be 
 and transmissible as such, and shall not be of the nature of e"ate?* 
 real estate. (_/) 
 
 8. Every person who shall have subscribed the prescribed Sharehold- 
 sum or upwards to the capital of the company, or shall ^"' 
 otherwise have become entitled to a share in the company, 
 
 and whose name shall have been entered on the register of 
 
 (/) As to nature of shares generally, see Treatise, p. 254 et seq.
 
 Ivi 
 
 Registry of 
 sharehold- 
 ers. 
 
 Addresses of 
 sharehold- 
 ers. 
 
 Certificates 
 of shares to 
 be issued to 
 the share- 
 holders. 
 
 Appendix — Statutes. 
 
 shareholders hereinafter-mentioned, shall be deemed a 
 shareholder of the company. 
 
 9. The company shall keep a book, to be called the 
 " Register of Shareholders ; and in such book shall be fairly 
 and distinctly entered, from time to time, the names of the 
 several corporations and the names and additions of the 
 several persons entitled to shares in the company, together 
 with the number of shares to which such shareholders shall 
 be respectively entitled, distinguishing each share by its 
 number, and the amount of the subscriptions paid on such 
 shares, and the surnames or coi-porate names of the said 
 shareholders shall be placed in alphabetical order : and such 
 book shall be authenticated by the common seal of the 
 company being affixed thereto ; and such authentication 
 shall take place at the first ordinary meeting, or at the next 
 subsequent meeting of the company, and so from time to 
 time at each ordinary meeting of the company, (g) 
 
 10. In addition to the said register of shareholders, the 
 company shall provide a book, to be called the " Shareholders 
 Address Book," in which the secretary shall from time to 
 time enter in alphabetical order the corporate names and 
 places of business of the several shareholders of the com- 
 pany, being corporations, and the surnames of the several 
 other shareholders with their respective christian names, 
 places of abode, and descriptions, so far as the same shall 
 be known to the company; and ever)' shareholder, or if such 
 shareholder be a corporation the clerk or agent of such cor- 
 poration, may at all convenient times peruse such book 
 gratis, and may require a copy tliereof or of any part thereof; 
 and for every hundred words so required to be copied the 
 company may demand a sum not exceeding sixpence. 
 
 11. On demand of the holder of any share the company 
 shall cause a certificate of the pi-oprietorship of such share 
 to be delivered to such shareholder ; and such certificate 
 shall have the common seal of the company affixed thereto; 
 and such certificate shall specify the share in the under- 
 taking to which such shareholder is entitled ; and the same 
 may be according to the form in the schedule (A.) to this 
 act annexed, or to the like effect ; and for such certificate 
 the company may demand any sum not exceeding the pre- 
 scribed amount, or if no amount be prescribed, then a sum 
 not exceeding two shillings and sixpence. 
 
 ( g ) See as to registration of shareholders, Treatise, p. 249, 
 250 ; also, as to how far above provisions of act touching the 
 entries in the register are to be deemed directory only and not 
 essential, see Treat, ante, cap. VI T.
 
 8 Vict.c. 16 — Companies Clauses. Ivii 
 
 12. The said certificate (h) shall be admitted in all courts 5'"''f(f'''„'^g° 
 as prima fucie evidence of the title of such shareholder, his 
 executors, administrators, successors, or assigns, to the share 
 
 therein specified ; nevertheless the want of such certificate 
 shall not prevent the holder of any share from disposing 
 thereof. 
 
 13. If any such certificate be -worn out or damaged, p"tificate to 
 ., y. , . Ill ..• i- be renewed 
 then, upon the same being produced at some nieetmg oi ^y[,en de- 
 
 the directors, such directors may order the same to be stroyed. 
 cancelled, and thereupon another similar certificate shall be 
 given to the Jiarty in whom the property of such certificate, 
 and of the share therein^mentioned, shall be at the time 
 vested ; or if such certificate be lost or destroyed, then, 
 upon proof thereof to the satisfaction of the directors, a 
 similar certificate shall be given to the party entitled to the 
 certificate so lost or destroyed ; and in either case a due 
 entry of the substituted certificate shall be made by the 
 secretary in the register of shareholders ; and for every such 
 certificate so given or exchanged the company may demand 
 any sum not exceeding the prescribed amount, or if no 
 amount be pi'escribed, then a sum not exceeding two shil- 
 lings and sixpence. 
 
 And with respect to the transfer or transmission of shares. Transfer of 
 be it enacted as follows : shares. 
 
 14. Subject to the regulations herein or in the special act '^'^'^"^/t'^ ?^^ 
 contained, every shareholder may sell and transfer all or by deed duly 
 any of his shares in the undertaking, or all or any part of stamped. 
 his interest in the capital stock of the company, in case 
 
 such shares shall, under the provision hereinafter contained, 
 be consolidated into capital stock, and every such transfer 
 shall be by deed duly stamped, in which the consideration 
 shall be truly stated; and such deed may be according to 
 the form in the schedule (B.) to this act annexed, or to the 
 like effect, {i) 
 
 15. The said deed of transfer (when duly executed) shall '^[[^"'/to^ijg'^ 
 be delivered to the secretary, and be kept by him ; and the registered, 
 secretary shall enter a memorial thereof in a book to be &c. 
 called the " Register of Transfers," and shall indorse such 
 
 entry on the deed of transfer, and shall, on demand, deliver 
 a new certificate to tlie purchaser ; and for every such 
 entry, together with such indorsement and certificate, the 
 company may demand any sum not exceeding the pre- 
 
 {h) As to effect of certificate as evidence of title, see Treat, 
 ante, p. 260, 261. 
 (t) As to instrument of transfer, see Treatise, p. 265, 266. 
 c c 5
 
 Iviii AppeMix-^'-^Statiites'. 
 
 scribed amount, or if no amount be prescribed, tben a sum 
 not exceeding two shillings and sixpence; and on the request 
 of the purchaser of any share an indorsement of such 
 transfer shall be made on the certificate of such share, in- 
 stead of a new certificate being granted ; and such indorse- 
 ment, being signed by the secretary, shall be considered in 
 every respect the same as a new certificate; and until such 
 transfer has been so delivered to the secretary as aforesaid 
 the vendor of the share shall continue liable to the company 
 for any calls that may be made upon such share, and the 
 purchaser of the share shall not be entitled to receive any 
 share of the profits of the undertaking, or to vote in respect 
 of such share, {k) 
 Transfer not 16. No shareholder shall be entitled to transfer any 
 to be made share, after any call shall have been made in respect thereof, 
 paid '^^ ' until he shall have paid such call, nor until he shall have' 
 paid all calls for the time being due on every share held by 
 him. (/) 
 Closing of 17". It shall be lawful for the directors to close the regis- 
 transfer ter of transfers for the prescribed period, or if no period be 
 prescribed, then for a period not exceeding fourteen daj's 
 previous to each ordinaiy meeting, and they may fix a day 
 for the closing of the same, of which seven days notice shall 
 be given by advertisement in some newspaper as after men- 
 tioned ; and any transfer made during the time when the 
 transfer books are so closed shall, as between the company 
 and the party claiming imder the same, but not otherwise, 
 be considered as made subsequently to such ordinary meet- 
 ing. 
 Transmis- 18. If the interest in any share shall have become trans- 
 
 sion of mitted in consequence of the death or bankruptcy or insol- 
 
 other means ^'cncy of any shareholder, or in consequence of the marriage 
 than transfer of a female shareholder, or by any other lawful means than 
 ti°cat^ed"b''^"" '^^ ^ transfer according to the ])rovisions of this or the spe- 
 declaration. cial act, such transmission shall be authenticated by a de- 
 claration in writing as hereinafter-mentioned, or in such 
 other manner as the directors shall require; and every such 
 declaration shall state the manner in which and the party 
 to whom such share shall have been so transmitted, and 
 shall be made and signed by some credible person before a 
 justice, or before a master or master extraordinary of the 
 
 {k) As to t^le effect of such clause on the property in shares, 
 &c., see Treatise, pp. 266, 250; 351. 
 
 (/) As to question what meant by " time of making call, " 
 see Treatise, p. 285, n. {my.
 
 8 Vict. c. 16— 'Clauses Clauses. lix 
 
 high court of chancery; and such declaration shall be left 
 with the secretary, and thereupon he shall enter the name 
 of the person entitled under such transmission in the regis- 
 ter of shareholders ; and for every such entry the company 
 may demand any sum not exceeding the prescribed amount, 
 and where no amount shall be prescribed then not exceed- 
 ing five shillings ; and until such transmission has been so 
 authenticated no person claiming by virtue of any such 
 transmission shall be entitled to receive any share of the 
 profits of the undertaking, nor to vote in respect of any 
 sucli share as the holder thereof, [m) 
 
 19. If such transmission be by virtue of the marriage of ^'°°^ <?f . 
 
 a female shareholder, the said declaration shall contain a ^y marriage, 
 copy of the register of such marriage, or other particulars will, &c 
 of the celebration thereof, and shall declare the identity of 
 the wife with the holder of such share ; and if such ti-ans- 
 mission have taken place by virtue of any testamentary 
 instrument, or by intestacy, the probate of the will or the 
 letters of administration, or an official extract therefrom, 
 shall, together with such declaration, be produced to the 
 secretary ; and upon such production in either of the cases 
 aforesaid the secretary shall make an entry of the declara- 
 tion in the said register of transfers. (/??) 
 
 20. The company shall not be bound to see to the exe- Company not 
 cution of any trust, whether express, implied, or construe- ga"^ trusts." 
 tive, to which any of the said shares may be subject ; and 
 
 the receipt of the party in whose name any such share shall 
 stand in the books of the company, or if it stands in the 
 names of more parties than one, the receipt of one of the 
 parties named in the register of shareholders, shall from 
 time to time be a sufficient discharge to the company for 
 any dividend or other sum of money payable in respect of 
 such share, notwithstanding any trusts to which such share 
 may then be subject, and whether or not the company have 
 had notice of such trusts ; and the company shall not be 
 bound to see to the application of the money paid upon 
 such receipt. 
 
 And with respect to the payment of subscriptions and Payment of 
 the means of enforcing the payment of calls, be it enacted Calls. 
 as follows : 
 
 21. The several persons who have subscribed any money S'lbscrip- 
 towards the undertaking, or their legal representatives, paiTwhen 
 
 called for. 
 
 (to) As to the intent and operation of such provision, see 
 Treatise, p. 2oO, 251.
 
 Appendix— Statutes. 
 
 respectively, shall pay the sums respectively so subscrihed 
 or such portions thereof as shall from time to time be called 
 for by the company, at such times and places as shall be 
 appointed by the company ; and with respect to the pro- 
 visions herein or in the special act contained for enforcing 
 the payment of calls, the word " shareholder " shall extend 
 to and conclude the legal personal representatives of such 
 shareholder. 
 
 22. It shall be lawful for the company from time to time 
 to make such calls of money upon the respective share- 
 holders, in respect of the amount of capital respectively sub- 
 scribed or owing by them, as they shall think fit, provided 
 that twenty-one days notice at the least be given of each 
 call, and that no call exceed the prescribed amount, if any, 
 and that successive calls be not made at less tliau the pre- 
 scribed interval, if any, and that the aggregate amount of 
 calls made in any one year do not exceed the prescribed 
 amount, if any ; and ever)' shareholder shall be liable to 
 pay the amount of the calls so made, in respect of the shares 
 held by him, to the j^ersons and at the times and places 
 from time to time appointed by the company, {n) 
 
 23. If, before or on the day appointed for payment, anj- 
 shareholder do not pay the amount of any call to which he 
 
 ' is liable, then such shareholder shall be liable to pa)' in- 
 terest for the same at the rate allowed by law from the day 
 appointed for the payment thei-eof to the time of the actual 
 payment. 
 
 24. It shall be lawful for the company, if they think fit, 
 to receive from any of the shareholdei's willing to advance 
 the same all or any part of the monies due upon their re- 
 spective shares beyond the sums actually called for ; and 
 upon the principal monies so paid in advance, or so much 
 thereof as from time to time shall exceed the amount of the 
 calls tlien made upon the shares in respect of which such 
 advance shall be made, the company may pay interest at 
 such rate, not exceeding the legal rate of interest for the 
 time being, as the shareholder paying such sum in advance 
 and the company shall agree upon. 
 
 25. If at the time appointed by the company for the pay- 
 ment of any call any shareholder fail to pay the amount of 
 such call, it shall be lawi'ul for the company to sue such 
 shareholder for the amount thereof, in any court of law or 
 equity having competent jurisdiction, and to recover the 
 
 (n) As to power to make calls, &c., see Treatise, ante, p, 
 275, et seq. 
 
 i
 
 8 Vict. c. \6— Companies Clauses. Ixi 
 
 same, with lawful interest, from the day on which such call 
 was payable, (o) 
 
 26. In any action or suit to be brought by the company Declaration 
 against any shareholder to recover any money due for any caib.''"" '""^ 
 call, it shall not be necessary to set forth the special niattev, 
 
 but it shall be sufficient for the compaiiy to declare that the 
 defendant is the holder of one share or more in the com- 
 pany (stating the number of shares), and is indebted to the 
 company in the sum of money to wliich the calls in arrear 
 shall amount in respect of one call or more upon one sliare 
 or more (stating the number and amount of each of such 
 calls), whereby an action hath accrued to the company by 
 virtue of this and the special act. (p ) 
 
 27. On the trial or hearing of such action or suit it shall ^^^tter u, be 
 be sufficient to prove that the defendant at the time of action for 
 making such call was a holder of one share or more in the calls, 
 undei'taking, and that such call was in fact made and such 
 
 notice thereof given as is directed by tliis or the special 
 act; and it shall not be necessary to prove the appointment 
 of the directors who made such call, nor any other matter 
 whatsoever; and thereupon the company shall be entitled 
 to recover what shall be due upon such call, with interest 
 thereon, unless it shall appear either that any such call ex- 
 ceeds the prescribed amount, or that due notice of such call 
 was not given, or that the prescribed interval between two 
 successive calls had not elapsed, or that calls amounting to 
 more than the sum prescribed for the total amount of calls 
 in one year had been made within that period, (q) 
 
 28. The production of the register of shareholders shall Proof of pro- 
 be primli facie evidence of such defendant being a share- pr'etorship. 
 holder, and of the number and amount of his shares, (r) 
 
 And with respect to the forfeiture (s) of shares for non- Non.par/- 
 payment of calls, be it enacted as follows : "c"u ""^ 
 
 (o) Declaration need not contain a count for interest ; see 
 Treat, ante, cap. VII. As to necessity of writ of inquiry where 
 judgment is suffered by default, see Treat, ante, ib. 
 
 {p} See as to declaration generally, Treatise, ante, ib. 
 
 (y) As to effect of such a provision on the pleadings in ac- 
 tions for calls, see Treatise, ante, pp. 278, 279, and cap. VII. 
 
 (r) As to effect of register as evidence, and when admissible 
 though not stiictly kept in compliance with requisites of act, 
 see Treatise^ ante, cap. VII. 
 
 (s) As to exercise of power of forfeiture under a prior act 
 by directors, see Treatise, cap. Ill, sect. 4, subsect 3, and 
 cap. VII.
 
 Ixii 
 
 Forfeiture of 
 shares for 
 non-pay 
 meat. 
 
 Notice of for- 
 feiture to be 
 given before 
 (leclaratioa 
 thereof. 
 
 Forfeiture to 
 becundrmed 
 by a general 
 meeting. 
 
 Sale of for- 
 leitedshares. 
 
 Appendix — Statutes. 
 
 29. If any shareholder fail to pay any call payable by 
 him, together with the interest, if any, that shall have ac- 
 crued thereon, the directors, at any time after the expiration 
 of two months from the day! appointed for payment of 
 Buch call, may declare the share in respect of which such 
 call was payable forfeited, and that whether the company 
 have sued for the amount of such call or not. 
 
 30. Before declaring any share forfeited the directors 
 shall cause notice of such intention to be left at or trans- 
 mitted by the post to the usual or last place of abode of the 
 person appearing by the register of shareholders to be the 
 proprietor of such share ; and if the holder of any such 
 share be abroad, or if his usual or last place of abode be not 
 known to the directors, by reason of its being imperfectly 
 described in the shareholders address book, or otherwise, 
 or if the interest in any such share shall be known by the 
 directors, to have become transmitted otherwise than by 
 transfer as hereinbefore mentioned, but a declaration of 
 such transmission shall not have been registered as afore- 
 said, and so the address of the parties to whom the same 
 may have been transmitted, or may for the time being 
 belong, shall not be known to the directors, the director* 
 shall give public notice of such intention in the London or 
 Dublin Gazette, according as the company's principal place 
 of business shall be situate in England or Ireland, and also 
 in some newspaper as after mentioned; and the several 
 notices aforesaid shall be given twenty-one days at least 
 before the directors shall make such declaration of forfeiture. 
 
 31. The said declaration of forfeiture shall not take effect 
 so as to authorize the sale or other disposition of any share 
 until such declaration have been confirmed at some general 
 meeting of the company to be held after the expiration of 
 two months at the least from the day on which such notice 
 of intention to make such declaration of forfeiture shall have 
 been given; and it shall be lawful for the company to con- 
 firm such forfeiture at any such meeting, and by an order at 
 such meeting or at any subsequent general meeting, to direct 
 the share so forfeited to be sold or otherwise disposed of. {t) 
 
 32. After such confirmation as aforesaid it shall be lawful 
 for the directors to sell the forfeited share, either by public 
 auction or private contract, and if there be more than one 
 such forfeited share, then either separately or together, as 
 
 (<) As to necessity of confirmallon of declaration of forfeiture 
 by general meeting to constitute a valid forfeiture, see Treatise, 
 cap. Ill, sect. 4, subject 3.
 
 8 Vict. c. 16 — -Companies Clauses. Ixin 
 
 to tliem shall seem fit; and any shareholder may purchase 
 any forfeited share so sold.(M) 
 
 33. A declaration in writing, by some credible person Evidence as 
 not interested in the matter, made before any justice or ''' '■'''•t'<^'t"''e 
 before any master or master extraordinary of the Iliph 
 
 Court of Chancery, that the call in respect of a share was 
 made, and notice thereof given, and that default in pay- 
 ment of the call was made, and that the forfeiture of the 
 share was declared and confirmed in manner hereinbefore 
 required, shall be sufficient evidence of the facts therein 
 stated; and such declaration, and the receipt of the trea- 
 surer of the company for the price of such share, shall con- 
 stitute a good title to such share ; and a certificate of pro- 
 prietorship shall be delivered to such purchaser, and there- 
 upon he shall be deemed the holder of such share, discharged 
 from all calls due prior to such purchase; and he shall not 
 be bound to see to the application ot the purchase money, 
 nor shall his title to such share be affected by any irregu- 
 larity in the proceedings in reference to such sale. 
 
 34. The company shall not sell or transfer more of the ^° more^ 
 shares of any such defaulter than will be sufficient, as nearly gou than 
 as can be ascertained at the time of such sale, to pay the sufficient for 
 arrears then due from such defaulter on account of any PY™*^"' °^ 
 calls, together with interest, and the expences attending 
 
 such sale and declaration of forfeiture ; and if the money 
 produced by the sale of any such forfeited shares be more 
 than sufficient to pay all arrears of calls and interest thereon 
 due at the time of such sale, and the expences attending 
 the declaration of forfeiture and sale thereof, the surplus 
 shall J on demand, be paid to the defaulter. 
 
 35. If payment of such arrears of calls and interest and On payment 
 expences be made before any share so forfeited and vested fo^g'^slfi ^^' 
 in the company shall have been sold, such share shall i-evert forfeited 
 to the party to whom the same belonged before such for- shares to 
 feiture, in such manner as if such calls had been duly paid. 
 
 revert. 
 
 (a) Where, under a power of forfeiture or sale given by the 
 deed of settlement of a joint stock banking company, thedirec- 
 tors declared a party's shares forfeited, and gave him credit in 
 his account for a sum something less than the market price of 
 the shares, but above what that price would have fallen to, had 
 the shares in question been carried into the market, the forfeiture 
 was held void, and was set aside by a court of equity; Slubbs 
 \. Lister, 1 V. & Coll. N. C. 81.
 
 Ixiv Appendix- — Statutes. 
 
 Remedies ^^^^ ^^'itli respect to the remedies of creditors of tile com- 
 agnin.st panji against the shareholders, be it enacted as follows: 
 hoUiers ^^- ^^ ^"^ execution, either at law or in equity, shall 
 
 Execution have been issued against the property or effects of the com- 
 ^^a'"st pany, and if there cannot be found sufficient whereon to 
 
 to the extent '^^T such execution, then such execution may be issued 
 of their against any of the shareholders to the extent of their shares 
 capUal'not respectively in the capital of the company not then paid 
 paid lip- up: provided always, that no such execution shall issue 
 against any shareholder except upon an order of the court 
 in which the action, suit, or other proceeding shall have 
 been, brought or instituted, made upon motion in open 
 court, after sufficient notice in writing to the persons sought 
 to be charged: and upon such motion such court may order 
 execution to issue accordingly; and for the purpose of ascer- 
 taining the names of the shareholders, and the amount of 
 capital remaining to be paid upon their respective shares, it 
 shall be lawful for any person entitled to any such execution, 
 at all reasonable times, to inspect the register of shareholders 
 Vvithout fee.fjj 
 Reimburse- •^7'. If by means of any such execution any shareholder 
 mentofsuch shall have paid any sum of money beyond the amount tlicn 
 shnrehold- ^^^^ from him in respect of calls, he shall forthwith be reim- 
 bursed such additional sum by the directors out of the tunds 
 of the company. 
 
 Pnwer to And with respect to the borrowing of money by the com- 
 
 borrow pany on mortgage or bond, be it enacted as follows: 
 
 Monty. 2g jf j_]^g company be authorized by the special act to 
 
 Power to borrow money on mortgage or bond, it shall be lawful for 
 
 ney. them, subject to the restrictions contained in the special 
 
 act, to horrow on mortgage or bond such sums of money as 
 
 shall from time to time, by an order of a general meeting 
 
 (x) Semble, a scire facias may possibly be deemed necessary 
 under this clause in order to have execution ag-ainst a share- 
 holder. See Stat. 7 & 8 Vict. c. 110. s. ; and see also Clones 
 V. Bret eel, 10 M. & W. 506; Rawfurd v Bonsanquet, 12. A. § 
 E. 813; Eardleyv. Law. ih. S02 ; Cross v. Law, 6 'hi. S^W . 217 ; 
 Whittenbunj v Law, 6 Bing. N. C. 345; Harwoodv. Law, 7 M. 
 4,- W. 203,- IVivgJield v. Barton, 2 Dowl. P. C. N. S. 355; S. 
 C. nom. IVivfietd v. Peel, 21 Law. Journ. Q. B. 102. In order 
 to haveexecution against an individual shareholder, a party, it 
 should seem, must show that he has made substan:;ial and 
 boiia fide endeavours to obtain execution against the company. 
 See Eurdley v. Laiv, ubi supra.
 
 8 Vict. c. 1 6 — Companies Clauses. Ixv 
 
 of the company, be authorized to be borrowed, not exceed- 
 ing in the whole the sum prescribed by the special act, and 
 for securing the repayment of the money so borrowed, with 
 interest, to mortgage the undertaking, and the future calls 
 on the shareholders, or to give bonds in manner hereinafter 
 mentioned. (^) 
 
 39. If, after having borrowed any part of the money so Power to re. 
 authorized to be borrowed on mortgage or bond, the com- borrow, 
 pany pay off the same, it shall be lawful for them again to 
 
 borrow the amount so paid off, and so from time to time: 
 but such power of reborrowing shall not be exercised with- 
 out the authority of a general meeting of the company, un- 
 less the money be so reborrowed in order to pay off any 
 existing mortgage or bond. 
 
 40. Where by the special act the company shall be re- Evidence of 
 stricted from borrowing any money on mortgage or bond ^"rro^v'ng.'''^ 
 until a definite portion of their capital shall be subscribed or 
 
 paid up, or where by this or the special act the authority of 
 a general meeting is required for such borrowing, the certi- 
 ficate of a justice that such definite portion of the capital has 
 been subscribed or paid up, and a copy of the order of a 
 general meeting of the company authorizing the borrowing 
 of any money, certified by one of the directox's or by the 
 secretary to be a true copy, shall be sufficient evidence of 
 the fact of the capital required to be subscribed or paid up 
 having been so subscribed or paid up, and of the order for 
 borrowing money having been made; and upon production 
 to any justice of the books of the company, and of such 
 other evidence as he shall think sufficient, such justice shall 
 grant the certificate aforesaid. 
 
 41. Every mortgage and bond for securing money bor- Mortgages 
 rowed by the company shall be by deed under the common ^^ stamped, 
 seal of the company, duly stamped, and wherein the consi- 
 deration shall be truly stated; and every such mortgage 
 
 deed or bond may be according to the form in the schedule 
 (C.) or (D.) to this act annexed, or to the like effi^ct. 
 
 42. The respective mortgagees shall be entitled one with Rights of 
 another to their respective proportions of the tolls, sums, and 
 premises comprised in such mortgages, and of the future 
 
 calls payable by the shareholders, if comprised therein, ac- 
 cording to the respective sums in such mortgages mentioned 
 to be advanced by such mortgagees respectively, and to be 
 
 (y) Mortgage of undertaking does not carry the land; Doe d. 
 Myatt V. St. Helens and Runcorn Railway Company, 2 A. & E. 
 N. S. 364, and ante, p. 244.
 
 Ixvi Appendix — Statutes. 
 
 repaid the sums so advanced, with interest without any 
 preference one above another by reason of priority of the 
 date of any such mortgage, or of the meeting at which the 
 same was authorized, (c) 
 Application 43. No such mortgage (although it should comprise future 
 of calls, not- calls on the shareholders) shall, unless expressly so provided, 
 ingmo^t- ' preclude the company from receiving and applying to the 
 gage. purposes of the company any calls to be made by the com- 
 
 pany. 
 Riehts of '^'^' "^^^ respective obligees in such bonds shall, propor- 
 
 obiigees. tionally according to the amount of the monies secured 
 thereby, be entitled to be paid, out of the tolls or other pro- 
 perty or effects of the company, the respective sums in such 
 bonds mentioned and thereby intended to be secured, with- 
 out any preference one above another by reason of priority 
 of date of any such bond, or of the meeting at which the 
 same was authorized, or otherwise howsoever. (a) 
 Register of 45. A register of mortgages and bonds shall be kept by 
 mortgages the secretary, atid within fourteen days alter the date of any 
 and bonds, gu^h mortgage or bond an entry or memorial specifying the 
 number and date of such mortgage or bond, and the sums 
 secured thereby, and the names of the parties thereto, with 
 their proper additions, shall be made in such register; and 
 such register may be perused at all reasonable times by any 
 of the shareholders, or by any mortgagee or bond creditor 
 of the company, or by any person interested in any such 
 mortgage or bond, without fee or reward. 
 Transfers of 46. Any party entitled to any such mortgage or bond 
 mortgages may from time to time transfer his right and interest therein 
 be stamped? *•" ^"y other person; and every such transfer shall be by 
 deed duly stamped, wherein the consideration shall be truly 
 stated: and every such transfer may be according to the 
 form in the schedule(E.) tothis act annexed, or to the like 
 effect. 
 Transfers of 47. Within thirty days after the date of every such trans- 
 mortgages fer, if executed within the United Kingdom, or otherwise 
 
 (z) As to the nature of the mortgagee's remedy under such 
 an instrument see Pontet v. Basingstoke Canal Company, 3 
 Bing. N. C. 433. 
 
 (a) Quaere, whether an obligee can, under this provision, 
 maintain an action on any such bond against the company 
 while there are other bonds unsatisfied, la Hit! v. Manchester 
 and Salford IVnterworks Company, 2 B. & Ad. 544, where an 
 action was held to lie on such a bond, the provision was not 
 that the obligees should be paid outof the tolls, iScc. as here, but 
 simply that they should have equally a lien on the rates, &c.
 
 8 Vict. c. 16 — Companies Clauses. Ixvii 
 
 ■within thirty days after the arrival thereof in the United and bonds to 
 Kingdom, it shall be produced to the secretary, and there- ^^^J^^^^' 
 upon the secretary shall cause an entry or memorial tliereof 
 to be made in the same manner as in the case of the ori- 
 ginal mortgage; and after such entry every such transfer 
 shall entitle the transferee to the full benefit of the original 
 mortgage or bond in all respects ; and no party, having 
 made such transfer, shall have power to make void, release, 
 or discharge the mortgage or bond so transferred, or any 
 money thereby secured; and for such entry the company 
 may demand a sum not exceeding the prescribed sum, or, 
 where no sum shall be prescribed, the sum of two shillings 
 and sixpence; and until such entry the company shall not 
 be in any manner responsible to the transferee in respect of 
 such mortgage. 
 
 48. The interest of the money borrowed upon any such Payment of 
 mortgage or bond shall be paid at the periods appointed in monTet'bor- 
 such mortgage or bond, and if no period be appointed, half- rowed, 
 yearly, to the several parties entitled thereto, and in prefer- 
 ence to any dividends payable to the shareholders of the 
 company. 
 
 49. The interest on any such mortgage or bond shall in""gstto be 
 not be transferrable, except by deed duly stamped- stamped. 
 
 50. The company may, if they think proper, fix a period Repayment 
 for the repayment of the principal money so borrowed, with borrowed at 
 the interest thereof, and in such case the company shall a time fixed, 
 cause such period to be inserted in the mortgage deed or 
 
 bond ; and upon the expiration of such period the principal 
 sum, together with the arrears of interest theron, shall, on 
 demand, be paid to the party entitled to such mortgage or 
 bond; and if no other place of payment be inserted in such 
 mortgaged deed or bond, such principal and interest shall 
 be payable at the principal office or place of business of 
 the company. 
 
 51. If no time be fixed in the mortgage deed or bond for Repayment 
 the repayment of the money so borrowed, the party entitled of ™o"^y 
 to the mortgage or bond may, at the expiration or at any where no 
 time after the expiration of twelve months from the date of '"Die fixed, 
 such mortgage or bond, demand payment of the principal 
 
 money tliereby secured with all arrears of interest, upon 
 giving six months previous notice for that purpose ; and in 
 the like case the company may at any time pay off the 
 money borrowed, on giving the like notice; and every such 
 notice shall be in writing or print, or both, and if given by 
 a mortgagee or bond creditor sliall be delivered to the secre- 
 tary or left at the principal office of the company, and if
 
 Ixviii Appendix — Statutes. 
 
 given by the company shall be given either personally to 
 such mortgagee or bond ci'editor or left at his residence ; 
 or if such mortgagee or bond creditor be unknown to the 
 directors, or cannot be found after diligent inquiry, such 
 notice shall be given by advertisement in the London or 
 Dublin Gazette, according as the principal office of the 
 company shall be in England or Ireland, and in some 
 newspaper as after mentioned. 
 
 52, If the company shall have given notice of their in- 
 tention to pay off any such mortgage or bond at a time 
 when the same may lawfully be paid oiF by them, then at 
 the expiration of such notice all further interest shall cease 
 to be payable on such mortgage or bond, unless, on demand 
 of payment made pursuant to such notice, or at any time 
 thereafter, the company shall fail to paj' the principal and 
 interest due at the expiration of such notice on such mort- 
 gage or bond. 
 
 53. Where by the special act the mortgagees of the 
 company shall be empowered to enforce the payment of the 
 arrears of interest, or the arrears of principal and interest, 
 due on such mortgages, by the appointment of a receiver, 
 then, if within thirty days after the interest accruing upon 
 any such mortgage has become payable, and after demand 
 thereof in writing the same be not paid, the mortgagee 
 may, without prejudice to his right to sue for the interest so 
 in arrear in any of the superior courts of law or equity, 
 require the appointment of a receiver, by an application to 
 be made as hereinafter provided; and if within six months 
 after the principal money owing upon any such mortgage 
 has become payable, and after demand thereof in writing 
 the same be not paid, the mortgagee, without prejudice to 
 his right to sue for such principal money together with all 
 arrears of interest, in any of the superior courts of law or 
 equity, may, if his debt amount to the prescribed sum alone, 
 or if his debt does not amount to the prescribed sum, he 
 may, in conjunction with other mortgagees whose debts, 
 being so in arrear, after demand as aforesaid, shall, together 
 with his, amount to the prescribed sum, require the appoint- 
 ment of a receiver, by an application to be made as herein- 
 after provided. 
 
 Appoint- 54. Every application for a receiver in the cases afore- 
 
 inentofre- said shall be made to two justices, and on any such appli- 
 
 ceiver. cation it shall be lawful for such justices, by order in 
 
 writing, after hearing the parties, to appoint some person to 
 
 receive the whole or a competent part of the tolls or sums 
 
 liable to the payment of such interest, or such principal and 
 
 Interest to 
 cease on ex. 
 piration of 
 notice to pay 
 off mortgage 
 or bond. 
 
 Arrears of 
 interest, 
 when to be 
 enforced by 
 appointment 
 uf a receiver. 
 
 Arrears of 
 principal 
 and interest.
 
 8 Vict. c. 16 — Companies Clauses. Ixix 
 
 interest, as the case may be, until such interest, or until 
 such principal and interest, as tlie case may be, together 
 with all costs, including the charges of receiving the tolls or 
 sums aforesaid, be fully paid; and upon such appointment 
 being made all such tolls and sums of money as aforesaid 
 shall be paid to and received by the person so to be ap- 
 pointed; and the money so to be received shall be so mudi 
 money received by or to the use of the party to whom sucn 
 interest, or such principal and interest, as the case may be, 
 shall be then due, and on whose behalf such receiver shall 
 have been appointed; and after such interest and costs, or 
 such principal, interest, and costs, have been so received, 
 the power of such receiver shall cease. 
 
 55. At all seasonable times the books of account of the Access to 
 company shall be open to the inspection of the respective u^'^^g^u" 
 mortgagees and bond creditors thereof, with liberty to take mortgagees, 
 extracts therefrom, without fee or reward. 
 
 And with respect to the conversion of the borrowed money Loans. 
 into capital, be it enacted as follows: 
 
 56. It shall be lawful for the company, if they think fit. Power to 
 iniless it be otherwise provided by the special act, to raise convert loan 
 the additional sum so authorizetl to be borrowed, or anyi" ° '^^P' ^ • 
 part thereof, by creating new shares of the company, instead 
 
 of borrowing the same, or, having borrowed the same, to 
 continue at interest only a part of such additional sinn, and 
 to raise part thereof by creating new shares; but no such 
 augmentation of capital as aforesaid shall take place with- 
 out the previous authority of a general meeting of the com- 
 pany. 
 
 57. The capital so to be raised by the creation of new New shares 
 shares shall be considered as part of the general capital, and ^° ^^ consi- 
 shall be subject to the same provisions in all respects, whe- as original 
 ther with reference to the payment of calls, or the forfeiture shares. 
 
 of shares on nonpayment of calls, or otherwise, as if it had 
 been part of the original capital, except as to the times of 
 making calls for such additional capital, and the amount of 
 such calls, which respectively it shall be lawful for the com- 
 pany from time to time to fix as they shall think fit. 
 
 58. If at tlie time of any such augmentation of capital If old shares 
 taking place by the creation of new shares the then existing at prt-m'uni. 
 shares be at a premium, or of greater actual value than the to be offered 
 nominal value thereof, then, unless it be otherwise provided to ^^^ share- 
 by the special act, the sum so to be raised shall be divided ° ''^' 
 into shares of such amount as will conveniently allow the 
 
 same to be apportioned among the then shareholders in
 
 Ixx Appendix — Statutes. 
 
 proportion to the existing shares held by them respectively; 
 and such new shares shall be oiFered to the then share- 
 holders in the proportion aforesaid ; and such offer shall be 
 made by letter under the hand of the secretary given to or 
 sent by post, addressed to each shareholder according to his 
 address in the shareholders address book, or left at his usual 
 OB last place of abode. 
 Shares to 59. The said new shares shall vest in and belong to the 
 
 vest in the shareholders who shall accept the same, and pay the value 
 cepting ; thereof to the company at the time and by the instalments 
 otherwise to which shall be fixed by the company ; and if any share- 
 of by the^ holder fail(6j for one month after such offer of new shares 
 directors. to accept the same, and pay the instalments called for in re- 
 spect thereof, it shall be lawful for the company to dispose 
 of such shares in such manner as they shall deem most for 
 the advantage of the company. 
 If not at a 60. If at the time of such augmentation of capital taking 
 
 premium, to pj^^g j.]^g existinsT shares be not at a premium, then such 
 be issued as t^ i /■ i t i • j • 
 
 company new shares may be oi such amount, and may be issued m 
 think fit. such manner and on such terms, as the company shall 
 think fit. 
 
 Cunsolida- And with respect to the consolidation of the shares into 
 
 tton of stock, be it enacted as follows; 
 Power to 61. It shall be lawful tor the company irom time to time, 
 
 consolidate with the consent of three-fifths of the votes of the share- 
 stock, holders present in person or by proxy at any general meet- 
 ing of the company, when due notice for that purpose shall 
 have been given, to convert or to consolidate all or any part 
 of the shares then existing in the capital of the company, 
 and in respect whereof the whole money subscribed shall 
 have been paid up, into a general capital stock, to be divided 
 amongst the shareholdeos according to their rrspective in- 
 terests therein. 
 Proprietors 62. After such conversion or consolidation shall have 
 of stock may taken place all the provisions contained in this or the spe- 
 same. cial act which require or imply that the capital of the com- 
 pany shall be divided into shares of any fixed amount, and 
 distinguished by numbers, shall, as to so much of the capital 
 as shall have been so converted or consolidated into stock, 
 cease and be of no effect, and the several holders of such 
 stock may thenceforth transfer their respective interests 
 therein, or any parts of such interests, in the same manner 
 
 (Zi) See Pearson v. London and Croydon Railway Company, 
 9 Jur. R. 314, cited ante, cap. VII.
 
 8 Vict. c. 1 6 — Companies Clauses. Ixxi 
 
 and subject to the same regulations and provisions as or 
 according to which any shares in the capital of the company 
 might be transferred under the provisions of this or the spe- 
 cial act; and the company shall cause an entry to be made 
 in some book, to be kept for that purpose, of every such 
 transfer ; and for every such entry they may demand any 
 sum not exceeding the prescribed amount, or if no amount 
 be prescribed a sum not exceeding two shillings and six- 
 pence. 
 
 63. The company shall from time to time cause the names Register of 
 of the several parties who may be interested in any such 
 
 stock as aforesaid, with the amount of the interest therein 
 possessed by them respectively, to be entered in a book to 
 be kept for the purpose, and to be called " The Register of 
 Holders of Consolidated Stock; " and such book shall be 
 accessible at all seasonable times to the several holders of 
 shares or stock in the undertaking. 
 
 64. The several holders of such stock shall be entitled to Proprietors 
 participate in the dividends and profits of the company, tftie'J'todWi- 
 according to the amount of their respective interests in such dends. 
 stock, and such interests shall, in proportion to the amount 
 
 thereof, confer on the holders thereof respectively the same 
 privileges and advantages, for the purpose of voting at meet- 
 ings of the company, qualification for the office of directors, 
 and for other purposes, as would have been conferred by 
 shares of equal amount in the capital of the company, but 
 so that none of such privileges or advantages, except the 
 participation in the divivends and profits of the company, 
 shall be conferred by any aliquot part of such amount of 
 consolidated stock as would not, if existing in shares, have 
 conferred such privileges or advantages respectively. 
 
 65. And be it enacted, that all the money raised by the Application 
 company, whether by subscriptions of the shareholders or ""^ up a . 
 by loan or otherwise, shall be applied, firstly, in paying the 
 
 costs and expenses incurred in obtaining the special act, 
 and all expenses incident thereto, and, secondly, in carrying 
 the purposes of the company into execution (c). 
 
 And with respect to the general meetings of the com- Genera 
 pany, and the exercise of the right of voting by the share- J'^^^^'S"- 
 holders, be it enacted as follows: 
 
 ( c) As to the effect of this provision in giving a right of 
 action against the company, see Treatise, ante, cap. VII.
 
 Business at 
 
 ordinary 
 
 meetings. 
 
 Extraordi- 
 nary meet- 
 ings. 
 
 Bu?ine?s at 
 extraordina- 
 ry meetings 
 
 Extraordi- 
 nary meet- 
 ines may be 
 required by 
 sharehold- 
 ers. 
 
 Appen dix — Statutes. 
 
 66. The first general meeting of the shareholders of the 
 company shall be held within the prescribed time, or, if no 
 time be prescribed, within one month after the passing of 
 the special act, and the future general meetings shall be 
 held at the prescribed periods, and if no periods be pre- 
 scribed, in the months of February and August ill each 
 year, or at such other stated periods as shall be appointed 
 for that purpose by an order of a general meeting; and the 
 meetings so appointed to be held as aforesaid shall be called 
 " Ordinary Meetings;" and all meetings, whether ordinary 
 or extraordinary, shall be held in the prescribed place, if 
 any, and if no place be prescribed, then at some place to 
 be appointed by the directoi-s((/). 
 
 • 67. No matters, except such as are appointed by this or 
 the special act to be done at an ordinary meeting, shall be 
 transacted at any such meeting, unless special notice of such 
 matters have been given in the advertisement convening 
 such meeting. 
 
 68. Every general meeting of the shareholders, other 
 than an ordinary meeting, shall be called an "Extraordinary 
 Meeting;" and such meetings may be convened by the 
 directors at such times as the)' think fit. 
 
 69. No extraordinary meeting shall enter upon any busi-' 
 ness not set forth in the notice upon which it shall have 
 
 ' been convened. 
 
 70. It shall be lawful for the prescribed number of share- 
 holders, holding in the aggregate shares to the prescribed 
 amount, or where the number of shareholders or amount of 
 shares shall not be prescribed, it shall be lawful for twenty 
 or more shareholders holding in the aggregate not less than 
 one-tenth of the capital of the company, by writing under 
 their hands, at any time to require the directors to call an 
 extraordinary meeting of the company; and such requisi- 
 tion shall fully express the object of the meeting required to 
 be called, and shall be left at the office of the company, or 
 given to at least three directors, or left at their last or usual 
 places of abode; and forthwith upon the receipt of such re- 
 quisition the directors shall convene a meeting of the share- 
 holders; and if for twenty-one days after such notice the 
 
 (rf) How far regulations of act as to holding of meetings to 
 be deemed directory or imperative, see Fossv. Harbottle, 2, Hare, 
 4P5, and ante, Treatise, p. 237; and as to the con&squences 
 of the non-observance of such regulations in any essential 
 point, seeib. pp. 70, 71.
 
 8 Vict. c. 1 6 — Companies Clauses. Ixxiii 
 
 directors fail to call such meeting, the prescribed number, or 
 such other number as aforesaid, of shareholders, qualified as 
 aforesaid, may call such meeting, by giving fourteen days 
 public notice thereof, (e) 
 
 71. Fourteen days public notice at the least of all meet- Notice of 
 ings, whether ordinary or extraordinary, shall be given by ""^etings. 
 advertisement, which shall specify the place, the day, and 
 
 the hour of meeting; and every notice of an extraordinary 
 meeting, or of an ordinary meeting, if any other business 
 than the business hereby or by the special act appointed for 
 ordinary meetings is to be done thereat, shall specify the 
 purpose for which the meeting is called, (e) 
 
 72. In order to constitute a meeting (whether ordinary Quorum for 
 or extraordinary) there shall be present, either personally a general 
 or by proxy, the prescribed quorum, and if no quorum be ^^^ '"^* 
 prescribed then shareholders holding in the aggregate not 
 
 less than one twentieth of the capital of the company, and 
 being in number not less than one for every five hundred 
 pounds of such required proportion of capital, unless such 
 number would be more than twenty, in which case twenty 
 shareholders holding not less than one twentieth of the 
 capital of the company, shall be the quorum; and if within 
 one hour from the time appointed for such meeting the said 
 quorum be not present no business shall be transacted at 
 the meeting, other than the declaring of a dividend, in case 
 that shall be one of the objects of the meeting, but such 
 meeting shall, except in the case of a meeting for the elec- 
 tion of directors, hereinafter mentioned, be held to be ad- 
 journed sine die. 
 
 73. At every meeting of the company one or other of Chairman at 
 the following persons shall preside as chairman ; that is to ^eTtings. 
 say, the chairman of the directors, or in his absence the 
 
 deputy chairman (if any), or in the absence of the chair- 
 man and deputy chairman some one of the directors of the 
 company to be chosen for that purpose by the meeting, or 
 in the absence of the chairman and deputy chairman and 
 of all the directors, any shareholder to be chosen for that 
 purpose by a majority of the shareholders present at snch 
 meeting. 
 
 74. The shareholders present at any such meeting shall Business at 
 proceed in the execution of the powers of the company with ^^^ adfoum- 
 respect to the matters for which such meeting shall have ments. 
 been convened, and those only: and every such meeting 
 may be adjourned from time to time, and from place to 
 
 (e) See n. (d), ante, p. Ixxii 
 
 D D
 
 Ixxiv 
 
 Votes of 
 sharehold- 
 ers. 
 
 Manner of 
 voting. 
 
 Regulations 
 as to proxies. 
 
 Votes of 
 joint share- 
 holders. 
 
 Votes of lu 
 uatics and 
 minors, &c. 
 
 Appendix — Statutes. 
 
 place; and no business shall be transacted at any adjourned 
 meeting other than the business left unfinished at the 
 meeting from which such adjournment took place. 
 
 75. At all general meetings of the company every share- 
 holder shall be entitled to vote according to the prescribed 
 scale of voting, and where no scale shall be prescribed every 
 shareholder shall have one vote for every share up to ten, 
 and he shall have an additional vote for every five shares 
 beyond the first ten shares held by him up to one hundred, 
 and an additional vote for every ten shares held by him 
 beyond the first hundred shares; provided always, that no 
 shareholder shall be entitled to vote at any meeting unless 
 he shall have paid all the calls then due upon the shares 
 held by him. 
 
 76. The votes may be given either personally or by 
 proxies, being shareholders, authorized by writing according 
 to the form in the schedule (F.) to this act annexed, or in 
 a form to the like effect, under the hand of the shareholder 
 nominating such proxy, or if such shareholder be a cor- 
 poration, then under their common seal ; and every pro- 
 position at any such meeting shall be determined by the 
 majority of votes of the parties present, including proxies, 
 the chairman of the meeting being entitled to vote, not 
 only as a principal and proxy, but to have a casting vote if 
 there be an equality of votes. (J) 
 
 77. No jierson shall be entitled to vote as a proxy unless 
 the instrument appointing such proxy have been transmitted 
 to the secretary of the company the prescribed period, or, if 
 no period be j^rescribed, not less than forty-eight hours be- 
 fore the time appointed for holding the meeting at which 
 such proxy is to be used. 
 
 78. If several persons be jointly entitled to a share, the 
 person whose name stands first in the register of share- 
 holders as one of the holders of such share shall, for the pur- 
 pose of voting at any meeting, be deemed the sole proprietor 
 thereof; and on all occasions the vote of such first-named 
 shareholder, either in person or by proxy, shall be allowed 
 as the vote in respect of such share, without proof of the 
 concurrence of the other holders thereof. 
 
 79. If any shareholder be a lunatic or idiot, such lunatic 
 or idiot may vote by his committee; and if any shareholder 
 be a minor, he may vote b}' his guardian or any one of his 
 guardians; and every such vote may be given either in 
 person or by proxy. 
 
 (/) As to stamp on proxy, see 7 & 8 Vict. c. 21 .
 
 S Vict. c. 16 — Companies Clauses. Ixxv 
 
 80. Whenever in this or the special act the consent of Proof of a 
 any particular majority of votes at any meeting of the com- Sfjjority^of 
 pany is required in order to authorize any proceeding of the votes only 
 company, such particular majority shall only be required to required in 
 be proved in the event of a poll being demanded at such a poll being 
 meeting; and if such poll be not demanded, then a decla- demanded, 
 ration by the chairman that the resolution authorizing such 
 proceeding has been carried, and an entry to that effect in 
 
 the book of proceedings of the company, shall be sufficient 
 authority for such proceeding, without proof of the number 
 or proportion of votes recorded in favour of or against the 
 
 same. Appoint- 
 
 Tnent and 
 
 And with respect to the appointment and rotation of ^^^*^°l^^"-^ 
 directors, be it enacted as follows: 
 
 81. The number of directors shall be the prescribed Number of 
 number. directors. 
 
 82. Where the company shall be authorized by the spe- Power to 
 
 cial act to increase or to reduce the number of the directors, ^ary the 
 
 „ . • • number of 
 
 it shall be lawful for the company, from time to time, m directors. 
 
 general meeting, after due notice for that purpose, to in- 
 crease or reduce the number of the directors within the 
 prescribed limits, if any, and to determine the order of 
 rotation in which such reduced or increased number shall 
 go out of office, and what number shall be a quorum at 
 their meeting. 
 
 83. The directors appointed by the special act shall, un- Election of 
 less thereby otherwise provided, continue in office until the directors, 
 first ordinary meeting to be held in the year next after that 
 
 in which the special act shall have passed; and at such 
 meeting the shareholders present, personally or by proxy, 
 may either continue in office the directors appointed by the 
 special act, or any number of them, or may elect a new 
 body of directors, or directors to supply the places of those 
 not continued in office, the directors appointed by the spe- 
 cial act being eligible as members of such new body; and 
 at the first ordinary meeting to be held every year there- 
 after the shareholders present, personally or by proxy, shall 
 elect persons to supply the places of the directors then re- 
 tiring from office, agreeably to the provisions hereinafter 
 contained; and the several persons elected at any such 
 meeting, being neither removed nor disqualified, nor having 
 resigned, shall continue to l)e directoi's until others are 
 elected in their stead, as hereinafter mentioned. Existing di- 
 
 84. If at any meeting at which an election of directors rectors con- 
 ought to take place the prescribed quorum shall not be pre- ^"."^^ °f 
 
 D D 2
 
 Ixxvi Appendix — Statutes. 
 
 meeting for sent within one hour from the time appointed for the meet- 
 directors ° '^^S ^° election of directors shall be made, but such meeting 
 shall stand adjourned to the following day at the same time 
 and place ; and if at the meeting so adjourned the prescribed 
 quorum be not present within one hour from the time ap- 
 pointed for the meeting, the existing directors shall con- 
 tinue to act and retain their powers until new directors be 
 appointed at the first ordinary meeting of the following 
 year. 
 Qualification 85. No person shall be capable of being a director unless 
 he be a shareholder, nor unless he be possessed of the pre- 
 scribed number, if any, of shares; and no person holding 
 an office or place of trust or profit under the company, or 
 interested in any contract with the company, shall be capa- 
 ble of being a director; and no director shall be capable of 
 accepting any other office or place of trust or profit under 
 the company, or of being interested in any contract with 
 the company, during the time he shall be a director, (g) 
 Cases in 86. If any of the directors at any time subsequently to 
 
 of 'directo" ^i^ election accept or continue to hold any other office or 
 shall become place of trust or profit under the company, or be either di- 
 vacant. rectly or indirectly concerned in any contract with the com- 
 
 pany, or participate in any manner in the profits of any 
 work to be done for the company, or if such director at any 
 time cease to be a holder of the prescribed number of shares 
 in the company, then in any of the cases aforesaid the office 
 of such director shall become vacant, and thenceforth he 
 shall cease from voting or acting as a director. (/;) 
 Share- 87. Provided always, that no person, being a shareholder 
 
 i'ncor'por'a^ted ^^ member of any incorporated joint stock company, shall 
 joint stock be disqualified or prevented from acting as a director by 
 company not reason of an_v contract entered into between such joint stock 
 by reason^ of Company and the company incorporated by the special act; 
 contracts, but no such director, being a shareholder or member of such 
 joint stock company, shall vote on any question as to any 
 contract with such joint stock company. 
 Rotation 88. The directors appointed by the special act, and con- 
 
 directors, tinned in office as aforesaid, or the directors elected to sup- 
 ply the places of those retiring as aforesaid, shall, subject to 
 
 {g) As to what not a contract such as to disqualify a party 
 from acting as director, see Sheffield, Ashton-under-Lyne, and 
 Manchester Railway Company v. Wondcock, 7 M. & W. S?'! ; 
 S C. 2 Railw. Cas. 522, and ante, p. 240. 
 
 {h) Under this clause a party would, it seems, vacate his 
 office in the event of his becoming a bankrupt, though not by a 
 mere equitable mortgage. See ante, p. 241, 242.
 
 8 Vict.c. 16 — Companies Clauses. Ixxvii 
 
 the provision hereinbefove contained for increasing or re- 
 ducing the number of directors, retire from office at the 
 times and in the proportions following, the individuals to 
 retire being in each instance determined by ballot among 
 the directors, unless they shall otherwise agree; (that is to 
 say,) 
 
 At the end of the first year after the first election of 
 directors the prescribed number, and if no number be 
 prescribed one third of such directors, to be determined 
 by ballot among themselves, unless they shall otherwise 
 agree, shall go out of office: 
 At the end 'of the second year the prescribed number, 
 and if no number be prescribed one half of the remain- 
 ing number of such directors, to be determined in like 
 manner, shall go out of office : 
 At the end of the third year the prescribed number, and, 
 if no number be prescribed, the remainder of such di- 
 rectors, shall go out of office: 
 And in each instance the places of retiring directors 
 shall be supplied by an equal number of qualified share- 
 holders; and at the first ordinary meeting in every subse- 
 quent year the prescribed number, and if no niunber be 
 prescribed one third of the directors, being those who have 
 been longest in office, shall go out of office, and their places 
 shall be supplied in like manner; nevertheless every director 
 so retiring from office may be re-elected immediately or at any 
 future time, and after such re-election shall, with reference 
 to the going out by rotation, be considered as a new direc- 
 tor: provided always, that if the prescribed number of di- 
 rectors be some number not divisible by three, and the 
 number of directors to retire be not prescribed, the directors 
 shall in each case determine what number of directors, as 
 nearly one third as may be, shall go out of office, so that 
 the whole number shall go out of office in three years. 
 
 89. If any director die, or resign, or become disqualified supply of 
 or incompetent to act as a director, or cease to be a director occasional 
 by any other cause than that of going out of office by rota- o^g°"f^ (j" 
 tion as aforesaid, the remaining directors, if they think pro- rectors. 
 per so to do, may elect in his place some other sliareholder, 
 duly qualified, to be a director; and the shareholder so 
 elected to fill up any such vacancy shall continue in office 
 as a director so long only as the person in whose place he 
 shall have been elected would have been entitled to continue 
 if he had remained in office, (i) 
 
 (i) This clause is clearly not imperative on the directory. It 
 is no ground, accordingly, for setting aside proceedings in an
 
 Ixxviii Appendix — Statutes. 
 
 Powers And with respect to the powers of the directors, and the 
 
 of Directors, powers of the company to be exercised only in general 
 meeting, be it enacted as follows: 
 
 90. The directors shall have the management and super- 
 the company intendence of the affairs of the company, and they may 
 to be exer- lawfully exercise all the powers of the companj-, except as 
 'directors ^^^ *•" ^"*^^ matters as are directed by this or the special act to 
 be transacted by a general meeting of the company, but all 
 the powers so to be exercised shall be exercised in accord- 
 ance with and subject to the provisions of this and the spe- 
 cial act; and the exercise of all such powers shall be sub- 
 ject also to the control and regulation of any general 
 meeting specially convened for the purpose, but not so as 
 to render invalid any act done by the directors prior to any 
 resolution passed by such general meeting, {k) 
 Powers of ^^- Except as otherwise provided by the special act, the 
 the company following powers of the companj', (that is to say,) the choice 
 not to be ex- ^nd removal of the directors, except as herein-before men- 
 directors, tioned, and the increasing or reducing of their number 
 where authorized by the special act, the choice of auditors, 
 the determination as to the remuneration (/) of the directors, 
 auditors, treasurer, and secretary, the determination as to 
 the amount of money to be borrowed on mortgage, the de- 
 termination as to the augmentation of capital, and the de- 
 claration of dividends, shall be exercised only at a general 
 meeting of the company. 
 
 Proceedings And with respect to the proceedings and liabilities of the 
 
 nf Directors, directors, be it enacted as follows : 
 
 Meetings of 92. The directors shall hold meetings at such times as 
 
 directors. they shall appoint for the purpose, and they may meet and 
 adjourn as tiiey think proper, from time to time, and from 
 place to place: and at any time any two of the directors 
 may require the secretary to call a meeting of the directors, 
 and in order to constitute a meeting of directors there shall 
 be present at the least the prescribed quorum, and when no 
 quorum shall l)e prescribed there shall be present at least 
 one- third of the directors; and all questions at any such 
 meeting shall be determined by the majority of votes of ihe 
 directors present, and in case of an equal division of votes, 
 
 action for calls, at least after judgment by default, that the di- 
 rectors have not chosen to avail themselves of it. See Thames 
 Haven Railway Company v. Rose, 4 M. & Gr. 552, and ante, 24 1. 
 
 {k) As to powers of directors generally, see ante, p. 243. 
 
 (/) As to remuneration of directors, see ante, p. 242.
 
 8 Vict. c. 16 — Companies Clauses. Ixxix 
 
 the chairman shall have a casting vote in addition to his 
 vote as one of the directors. 
 
 93. At the first meeting of directors held after the pass- Permanent 
 ing of the special act, and at the first meeting of the direc- ^I'^g^t^rs" °^ 
 tors held after each annual appointment of directors, the 
 directors present at such meeting shall choose one of the 
 directors to act as chairman of the directors for the year 
 following such choice, and shall also, if they think fit, 
 
 choose another director to act as deputy chairman for the 
 same period; and if the chairman or deputy chairman die 
 or resign, or cease to he a director, or otherwise become 
 disqualified to act, the directors present at the meeting next 
 after the occurrence of such vacancy shall choose some 
 other of the directors to fill such vacancy; and every such 
 chairman or deputy chairman so elected as last aforesaid 
 shall continue in office so long only as the person in whose 
 place he may be so elected would have been entitled to con- 
 tinue if such death, resignation, removal, or disqualification 
 had not happened. 
 
 94. If at any meeting of the directors neither the chair- occasional 
 man nor deputy chairman be present, the directors present chairman of 
 shall choose some one of their number to be chairman of ""■^'=i°fs- 
 such meeting. 
 
 95. It shall be lawful for the directors to appoint one or Committees 
 more committees, consisting of such number of directors as o^ directors. 
 they think fit, within the prescribed limits, if any, and they powers of 
 may grant to such committees respectively power on behalf committees. 
 of the company to do any acts relating to the affairs of the 
 company which the directors could lawfully do, and which 
 
 they shall from time to time think proper to intrust to 
 them. 
 
 96. The said committees may meet from time to time, jjeetin?s of 
 and may adjourn from place to place, as they think proper, co mmittees. 
 for carrying into effect the purposes of their appointment; 
 
 and no such committee shall exercise the powers intrusted 
 to them except at a meeting at which there shall be present 
 the prescribed quorum, or if no quorum be prescribed, then 
 a quorum to be fixed for that purpose by tlie general body 
 of directors; and at all meetings of the committees one of 
 the members present shall be appointed chairman; and all 
 questions at any meeting of the committee shall be deter- 
 mined by a majority of votes of the members present, and 
 in case of an equal division of votes, the chairman shall 
 have a casting vote in addition to his vote as a member of 
 the committee.
 
 Ixxx Appendix — Statutes. 
 
 Contracts by 97. The power which may be granted to any such cora- 
 committee niitiee to make contracts, as well as the power of the direc- 
 howtobeen- f"''s to make contracts on behalf of the companj', maylaw- 
 tered into, fully be exercised as follows; (that is to say,) 
 
 With respect to any contract which, if made between 
 private persons, would be by law required to be in 
 writing, and under seal, such committee or the direc- 
 tors may make such contract on behalf of the company 
 in writing, and under the common seal of the com- 
 pany, and in the same manner may vary or discharge 
 the same : 
 With respect to any contract which, if made between 
 private persons, would be by law required to be in 
 writing, and signed by the parties to be charged there- 
 with, then such committee or the directors may make 
 such contract on behalf of the conrpany in writing, 
 signed by such committee or any two of them, or any 
 two of the directors, and in the same manner may vary 
 or discharge the same : 
 With respect to any contract which, if made between 
 private persons, would by law be valid although made 
 by parol only, and not reduced into writing, such com- 
 mittee or the directors may make such contract on be- 
 half of the company by parol only, without writing, 
 and in the same manner may vary or discharge the 
 same: 
 And all contracts made according to the provisions herein 
 contained shall be effectual in law, and shall be binding 
 upon the company and their snccessors, and all other parties 
 thereto, their heirs, executors, administrators, as the case 
 may be; and on any default in the execution of any such 
 contract, either by the company or any other party thereto, 
 such actions or suits may be brought, either by or against 
 the compan}', as might be brought had the same contracts 
 been made between private persons only. 
 Proceedings 98. The directors shall cause notes, minutes, or copies, as 
 to be entered {|jg ^^^^ ,-j-,jjy require, of all appointments made or contracts 
 in a book, i-"iit i,.i i i 
 
 and to be entered into by the directors, and or the orders and pro- 
 evidence, eeedings of all meetings of the company, and of the di- 
 rectoi-s and committees of directors, to be duly entered in 
 books, to be from time to time pro\nded for the purpose, 
 wiiich shall be kept under the superintendence of the 
 directors; and every such entry shall be signed by the chair- 
 man of such meeting; and such entry, so signed, shall be 
 received as evidence in all courts, and before all judges, 
 justices, and others, without proof of such respective meet-
 
 8 Vict. c. 16 — Companies Clauses. Ixxxi 
 
 ings having been duly convened or held, or of the persons 
 making or entering such orders or proceedings being share- 
 holders or directors or members of committee respectively, 
 or of the signature of the chairman, or of the fact of his 
 having been chairman, all of which last-mentioned matters 
 shall be presumed, until the contrary be proved. (?«) 
 
 99. All acts done by any meeting of tlie directors, or of informalities 
 a committee of directors, or by any person acting as a di- '° appoint- 
 rector, shall, notwithstanding it may be afterwards discovered rectors not 
 that there was some defect in the appointment of any such to invalidate 
 directors or persons acting as aforesaid, or that they or any Proceedings. 
 of them were or was disqualified, be as valid as if every 
 
 such person liad been duly appointed and was qualified to 
 be a director, (h) 
 
 100. No director, by being party to or executing in his Directors 
 capacity of director any contract or other instrument on not to oe 
 behalf of the company, or otherwise lawfully executing any fjable""' ^ 
 of the powers given to the directors, shall be subject to be 
 
 sued or prosecuted, either individually or collectively, by 
 any person whomsoever; and the bodies or goods or lands 
 of the directors shall not be liable to execution of any legal 
 process by reason of any contract or other instrument so 
 entered into, signed, or executed by them, or by reason of 
 any other lawful act done by them in the execution of any 
 of their powers as directors; and the directors, their heirs, indemnity 
 executors, and administrators, shall be indemnified out of of directors, 
 the capital of the company for all payments made or lia- 
 bility incurred in respect of any acts done by them, and for 
 all losses, costs, and damages which they may incur in the 
 execution of the powers granted to them; and the directors 
 for the time being of the company may apply the existing 
 funds and capital of the company for the purposes of such 
 indemnity, and may, if necessary for that purpose, make 
 calls of the capital remaining unpaid, if any. (o) 
 
 And with respect to the appointment and duties of au- Auditors. 
 ditors, be it enacted as follows : 
 
 (m) As to duty of entering^ all proceedings of company, &c. 
 and the consequences of the neglect to do so, see ante, p. 251 ; 
 also as to what a sufficient signature of minutes, and the effect 
 of the signature, see anie, cap. VII. 
 
 (n) See question as to effect of invalidity of appointment of 
 directors, ante, p. 72. 
 
 {()] As to liability of directors generally, and when respon- 
 sible on contracts concluded by them, see ante, p. 24o, 246. 
 D d5
 
 Ixxxil Appendix-^Statutes. 
 
 Election of 101. Except where by the special act auditors shall be 
 an itors. directed to be appointed otherwise than by the company, 
 the company shall, at the first ordinary meeting after the 
 passing of the special act, elect the prescribed number of 
 auditors, and if no number is prescribed two auditors, in 
 like manner as is provided for the election of directors : 
 and at the first ordinary meeting of the company in each 
 year thereafter the company shall in like manner elect an 
 auditor to supply the place of the auditor then retiring from 
 office, accoi-ding jto the provision hereinafter contained; 
 and every auditor elected as hereinbefore provided, being 
 neither removed nor disqualified, nor having resigned, shall 
 continue to be an auditor imtil another be elected in his 
 stead. 
 Qualification 102. Where no other qualification shall be prescribed by 
 of auditors, the special act, every auditor shall have at least one share 
 in the undertaking; and he shall not hold any office in the 
 company, nor be in any other manner interested in its con- 
 cerns, except as a shareholder. 
 Rotation of 103. One of sucli auditors (to be determined in the first 
 auditors. instance by ballot between themselves, unless they shall 
 otherwise agree, and afterwards by seniority) shall go out 
 of office at the first ordinary meeting in each year ; but the 
 auditor so going out shall be immediately re-eligible, and 
 after any such re-election shall, with respect to the going 
 out of office by rotation, be deemed a new auditor. 
 Vacancies in 104. If any vacancy take place among the auditors in 
 
 office of au- ^j^g course of the current year, then at the jreneral meeting 
 ditor. , J ■ c i-i 
 
 of the company the vacancy may, if the company thmk 
 
 fit, be supplied by election of the shareholders. 
 
 Failure of 105. The provision of this act respecting the failure of 
 
 eiect'audi-" ^'^ ordinary meeting at which directors ought to be chosen 
 
 tors. shall apply, mutatis mutandis, to any ordinary meeting at 
 
 which an auditor ought to be appointed. 
 Delivery of 106. The directors shall deliver to sucli auditors the half- 
 sheet'^&c by ^^^''^y o'" other periodical accounts and balance sheet, four- 
 directois to teen days at the least before the ensuing ordinary meeting 
 auditors. j^j -vyhich the same are required to be produced to the share- 
 holders as liereinafter provided. 
 Duty of 107. It shall be the duty of such auditors to receive from 
 
 au iiors. j.|^g directors the half yearly or other periodical accounts and 
 balance sheet required to be presented to the shareholders, 
 and to examine the same. 
 Powers of 108. It shall be lawful for the auditors to e'uploy such 
 auditors. accountants and other persons as they may think proper, at 
 the expence of the company, and they shall either make a
 
 8 Vict. c. 16 — Companies Clauses. Ixxxiii 
 
 special report on the said accounts, or simply confirm the 
 same ; and such report or confirmation shall be read, toge- 
 ther with the report of the directors, at the ordinary meet- 
 ing. 
 
 And with respect to the accountability of the officers of ^ccoujita- 
 the company, be it enacted as follows : officers. 
 
 109. Before any person intrusted with the custody or Security to 
 control of monies, whether treasurer, collector, or other 1?^^^^^^^^'^^^,^, 
 officer of the company, shall enter upon his office, the di- intrusted "^ 
 rectors shall take sufficient security from him for the faithful with money, 
 execution of his office. 
 
 110. Every officer employed by the company shall from officers to 
 time to time, when required by the directors, make out and account on 
 deliver to them, or to any person apponited by them lor that 
 purpose, a true and perfect account in writing under his hand 
 
 of all monies received by him on behalf of the company; 
 and such account shall state how, and to whom, and for 
 what purpose such monies shall have been disposed of; and, 
 together with such account, such officer shall deliver the 
 vouchers and receipts for such payments ; and every such 
 officer shall pay to the directors, or to any person appointed 
 by them to receive the same, all monies which shall appear 
 to be owing from him upon the balance of such accounts, (p) 
 
 111. If any such officer fail to render such account, or to Summary ' 
 produce and dehver up all the vouchers and receipts relating remedy 
 
 to the same in his possession or power, or to pay the balance J^es'faUhic I'o 
 thereof when thereunto required, or if for three days after accoant. " 
 being thereunto required he fail to deliver up to the directors, 
 or to any person appointed by them to receive the same, all 
 papers and writings, property, effects, matters, and things, 
 in his possession or power, relating to the execution of this 
 or the special act, or any act incorporated therewith, or be- 
 longing to the company, then, on complaint thereof being 
 made to a justice, such justice shall summon such officer to 
 appear before two or more justices at a time and place to be 
 set forth in such summons, to answer such charge; and 
 upon the appearance of such officer, or in his absence upon 
 proof that such summons was personally served upon him, 
 or left at his last known place of abode, such justices maj"' 
 hear and determine the matter in a summary way, and may 
 
 (p) Notwithstanding the summary remedy g-iven by the 
 next section, against parties failing to account, &c. qusere 
 whether the company might not have an action against them 
 for such breach of duty. See Mayor, etc. of Licfijteld v, Simpson, 
 i) Jurist, 1)89.
 
 Ixxxiv Appendix — Statutes. 
 
 adjust and declare the balance owing by such officer; and 
 if it appear, either upon confession of such officer or upon 
 evidence, or upon inspection of the account, that any monies 
 of the company are in the hands of such officer, or owing 
 by him to the company, such justices may order such officer 
 to pay the same; and if he fail to pay the amount it shall 
 be lawful for such justices to grant a warrant to levy the 
 same by distress, or^ in default thereof, to committhe offender 
 to gaol, there to remain without bail for a period not ex- 
 ceeding three months, unless the same be sooner paid, (g) 
 Officers re- 112. If any such officer refuse to make out such account 
 fusing to de- in writing, or to produce and deliver to the justices the 
 cuments, &c! several vouchers and receipts relating thereto, or to deliver 
 to be im- up any books, papers, or writings, property, effects, matters, 
 prisoned. ^j. things, in his possession or power, belonging to the com- 
 pany, such justices may lawfully commit such offender to 
 gaol, there to remain until he shall have delivered up all the 
 vouchers and receipts, if any, in his possession or power, 
 relating to such accounts, and have delivered up all books, 
 papers, writings, property, effects, matters, and things, if 
 any, in his possession or power, belonging to the company. 
 Where offi- 113. Provided always, that if any director or Other person 
 cer about to acting on behalf of the company shall make oath that he 
 abscond a, », ^iv i , ■, • , ■ 
 
 warrant may has goocl reasou to believe, upon grounds to be stated in bis 
 
 be issued in deposition, and does believe, that it is the intention of any 
 'tance"^^' "" ^^^^ officer as aforesaid to abscond, it shall be lawful for the 
 justice before whom the complaint is made, instead of issuing 
 his summons, to issue his warrant for the bringing such 
 officer before such two justices as aforesaid; but no person 
 executing such warrant shall keep such officer in custody 
 longer than twenty-four hours, without bringing him before 
 some justice ; and it shall be lawful for the justice before 
 whom such officer may be brought either to discharge such 
 officer, if he think there is no sufficient ground for his 
 detention, or to order such officer to be detained in custody, 
 so as to be brought before two justices, at a time and place 
 to be named in such order, unless such officer give bail to 
 the satisfaction of such justice for his appearance before such 
 justices to answer the complaint of the company. 
 Snfeties not 114. No such proceeding against or dealing with any 
 thareed'^'*' ^^'^'^ officer as aforesaid shall deprive the company of any 
 remedy which they might otherwise have against such offi- 
 cer, or any surety of such officer. 
 
 (?) See n. (p), ante, p. Ixxxiii.
 
 8 Vict. c. 1 6-~Companies Clauses. Ixxxv 
 
 And with respect to the keeping of accounts, and the Accounts. 
 tight of inspection thereof by the shareholders, be it enacted 
 as follows: 
 
 113. The directors shall cause full and true accounts to Accounts to 
 be kept of all sums of money received or expended on ^^ ''^P'* 
 account of the company by the directors and all persons 
 employed by or under them, and of the matters and things 
 for which such sums of money shall have been received or 
 disbursed and paid. 
 
 116. The books of the company shall be balanced at the Books to be 
 prescribed periods, and, if no periods be prescribed, fourteen balanced, 
 days at least before each ordinary meeting; and forthwith 
 
 on the books being so balanced an exact balanced sheet shall 
 be made up, which shall exhibit a true statement of the 
 capital stock, credits, and property of every description be- 
 longing to the company, and the debts due by the company 
 at the date of making such balance sheet, and a distinct 
 view of the profit or loss which shall have arisen on the 
 transactions of the company in the course of the preceding 
 half year; and previously to each ordinary meeting such 
 balance sheet shall be examined by the directors, or any 
 three of their number, and shall be signed by the chairman 
 or deputy chairman of the directors. 
 
 117. The books so balanced, together with such balance inspection 
 sheet as aforesaid, shall for the prescribed periods, and if no ^ ^'ifare-'^ 
 periods be prescribed for fourteen days previous to each or- holders at 
 dinary meeting, and for one month thereafter, be open for *'^t*d times, 
 the inspection of the shareholders at the principal office or 
 
 place of business of the company : but the shareholders shall 
 not be entitled at any time, except during the periods afore- 
 said, to demand the inspection of such books, unless in 
 virtue of a written order signed by three of the directors, (r) 
 
 118. The directors shall produce to the shareholders Balance 
 assembled at such ordinary meeting the said balance sheet, ^^eet to he 
 applicable to the period immediately preceding such meet- meet^nK'* *' 
 ing, together with the report of the auditors thereon, as 
 hereinbefore provided. 
 
 1 19. The directors shall appoint a book-keeper to enter Book-iteeper 
 the accounts aforesaid in books to be provided for the pur- to allow in- 
 pose; and every such book-keeper shall permit any share- the'accounts 
 holder to inspect such books, and to take copies or extracts at the ap- 
 therefrom, at any reasonable time durine: the prescribed po'i'^d 
 
 •^ or times. 
 
 (r) Shareholder held not entitled to inspect books of company 
 in order to fish out a defence therefrom to actions for calls ; Bir- 
 mingham, Bristol, and Thanien Junction Ruiltvai/ (Jm/ipany v. 
 IVhite, 1 A. & E. (N. S.) 282 j S. C. 2 R. Cas. 863; see ante, 
 p. 252.
 
 Ixxxvi Appendix — Statutes. 
 
 periods, and if no periods be prescribed, during one fortnight 
 before and one month after every ordinary meeting; and if 
 he fail to permit any such sharehohler to inspect such books, 
 or take copies or extracts therefrom, during the periods 
 aforesaid, he shall forfeit to such shareholder for every such 
 offence a sum not exceeding five pounds. 
 
 Divi'lends. And with respect to the making of dividends, be it enacted 
 
 as follows: 
 Previously 120. Previously to every ordinary meeting at which a 
 *f ^fr'"'rr""ri" *5i^'idend is intended to be declared the directors shall cause 
 a scheme to ^ scheme to be prepared, shewing the profits, if any, of the 
 be prepared, company for the period current since the preceding ordinary 
 meeting at which a dividend was declared, and apportioning 
 the same, or so much thereof as they may consider appli- 
 cable to the purposes of dividend, among the shareholders, 
 according to (he shares held by them respectively, the 
 amount paid thereon, and the periods during which the 
 same may have been paid, and shall exhibit such scheme at 
 such ordinary meeting, and at such meeting a dividend may 
 be declared according to such scheme. 
 Dividend not 121. The company shall not make any dividend whereby 
 to be made their capital stock will be in any degree reduced: provided 
 dute capital! always that the word "dividend" shall not be construed to 
 apply to a return of any portion of the capital stock, with 
 the consent of all the mortgagees and bond creditors of the 
 company, due notice being given for tliat purpose at an ex- 
 traordinary meeting to be convened for that object. 
 Power to -122. Before apportioning the profits to be divided among 
 
 set opart a the shareholders, the directors may, if they think fit, set 
 fund tor con- aside thereout such sum as they may think proper to meet 
 ingencies. contingencies, or for enlarging, repairing, or improving the 
 works connected with the undertaking, or any part thereof, 
 and may divide the balance only among the shareholders. 
 Dividend not 123. No dividend shall be paid in respect of any share 
 to be paid un- until all calls then due in respect of that and every other 
 Laid.'' ^^ ^ share held by the person to whom such dividend may be 
 payable shall have been paid. 
 
 Bye LaivB, And with respect to the making of bye laws, be it enacted 
 
 as follows : 
 Power to 124, It shall be lawful for the company from time to 
 
 f!J^^%o/''tj,g time to make such bye laws as they think fit, for the pur- 
 
 officersofthe pose of regulating the conduct of the officers and aervants 
 
 company.
 
 8 Vict. c. 16 — Companies Clauses. Ixxxvii 
 
 of the company, and for providing for the due management 
 of the affairs of the company in all respects whatsoever, and 
 from time to time to alter or repeal any such bye laws, and 
 make others, provided such bye laws be not repugnant to 
 the laws of that part of the United Kingdom where the same 
 are to have effect, or to the provisions of this or the special 
 act: and such bye laws shall be reduced into writing, and 
 shall have affixed thereto the common seal of the company; 
 and a copy of such bye laws shall be given to every officer 
 and servant of the company affected thereby(<). 
 
 125. It shall be lawful for the company, by such bye-laws. Fines for 
 to impose such reasonable penalties upon all persons, being breach.of 
 officers or servants of the company, offending against such laws, 
 bye laws, as the company think fit, not exceeding five pounds 
 
 for any one offence. 
 
 126. All the bye laws to be made by the company shall Bye laws to 
 be so framed as to allow the justice before whom any penalty ^^^° '''■ani'^d 
 imposed thereby may be sought to be recovered, to order ties may^be ' 
 a part only of such penalty to be paid, if such justice shall mitigated, 
 think fit. 
 
 127. The production of a written or printed copy of the Evidence of 
 bye laws of the company, having the common seal of the ^y^ ''''^'*' 
 company affixed thereto, shall be sufficient evidence of such 
 
 bye laws in all cases of prosecution under the same. 
 
 And with respect to the settlement of disputes by arbi- ArbUration. 
 tration, be it enactod as follows : 
 
 128. When any dispute, authorized or directed by this or wiiereques- 
 the special act, or any act incorporated tlierewitli, to be set- t'"""' are to 
 tied by arbitration, shall have ai'isen, tiien, unless both par- mi„p^*^'by 
 ties shall concur in the appointment of a single arbitrator, ariiitration, 
 each party, on the request of the other party, shall by writ- f"''""'ators 
 ing under his hand nominate and appoint an arbitrator to pointed'witii- 
 •whom such dispute shall be referred; and after any such in fourteen 
 appointment shall have been made, neither party shall have notice " 
 power to revoke the same without the consent of the other, 
 
 nor shall the death of either party operate as such revoca- 
 tion ; and if, for the space of fourteen days after any such 
 dispute shall have arisen, and after a request in writing shall 
 have been served by the one party on the other party to 
 appoint an arbitrator, such last-mentioned party fail toaj)- 
 point such arbitrator, then upon such failure the party mak- 
 
 (<1 As to extent of power of making, and requisites of bye 
 laws under prior railway acts, see ante, pp. 247, 248. See 
 also 8 Vict. c. 20, ss. 109—1 11, post.
 
 Ixxxviii Appendit — Statutes. 
 
 ilig the request, and having himself appointed an arbitrator, 
 may appoint such arbitrator to act on behalf of both parties, 
 and such arbitrator may proceed to hear and determine the 
 matters which shall be in dispute; and in such case the 
 award or determination of such single arbitrator shall be 
 final. 
 Vacancy of 1^9. If before the matters so referred shall be determined 
 arbitrator to any abitrator appointed by either party die, or become in- 
 ^ supp le . (.gp^ljlg Q^ refuse or for seven days neglect to act as arbi- 
 trator, the party by whom such arbitrator was appointed 
 may nominate and appoint in writing some other person to 
 act in his place ; and if for the space of seven days after 
 notice in writing from the other party for that purpose he 
 fail to do so, the remaining or other arbitrator may proceed 
 ex parte ; and every arbitrator so to be substituted as afore- 
 said shall have the same powers and authorities as were 
 vested in the former arbitrator at the time of such his death, 
 refusal, or disability as aforesaid. 
 Appoint- 130. When more than one arbitrator shall have been ap- 
 
 ment of um. pointed such arbitrators shall, before they enter upon the 
 ^^*^' matters referred to them, nominate and appoint by writing 
 
 under their hands an umpire to decide on any such matters 
 on which they shall differ : and if such umpire shall die, or 
 refuse or for seven days neglect to act, they shall forthwith 
 after such death, refusal, or neglect appoint another umpire 
 in his place ; and the decision of every such umpire on the 
 matters so referred to him shall be final; 
 Board of 1 3 1 . If in either of the cases aforesaid the said arbitra- 
 
 trade em- tors shall refuse, or shall, for seven days after request of 
 powered to either party to such arbitration, neglect to appoint an um- 
 nofpir", ''o"n ph"e, it shall be lawful for the board of trade, if they think 
 neglect of fit, in any case in which a railway company shall be one 
 tl'a^tors'in V^^^Y '^o ^he arbitration, on the application of either party 
 ciise of rail- to such arbitration, to appoint an umpire ; and the decision 
 Way com. ^f g^,}, Umpire on the matters on which the arbitrators shall 
 
 differ shall be final, 
 n f 132. The said arbitrators or their umpire may call for the 
 
 Power of ar- , . „ , • i • p 
 
 bitrators to production of any documents m the possession or power of 
 call for either party which they or he may think necessary for de- 
 
 )oo s, c. tgi-^^jj^ji^g t]jg question in dispute, and may examine the 
 
 parties or their witnesses on oath, and administer the oaths 
 
 necessary for that purpose. 
 Costs to be 133. Except where by this or the special act, or any act 
 inthediscre- incorporated therewith, it shall be otherwise provided, the 
 tion of the ^.^g^g ^f ^j^^ attending every such arbitration to be deter- 
 
 arbitrators. ° •'
 
 S Vict. c. ] 6 — Companies Clauses. Ixxxix 
 
 mined by the arbitrators shall be in the discretion of the 
 arbitrators or their umpires, as the case may be. 
 
 134. The submission to any such arbitration may be Submission 
 made a rule of any of the superior courts, on the application to^bitra- 
 of either of the parties. niade rule 
 
 of court. 
 And with respect to the giving of notices, be it enacted Notica, 
 as follows : 
 
 135. Any summons or notice, or any writ, or other pro- service of 
 ceeding, at law or in equity, requiring to be served upon the notices upon 
 company, may be served by the same being left at, or trans- '^°'"P'*"y- 
 mitted through the post directed to the principal office of 
 
 the company, or one of their principal offices where there 
 shall be more than one, or being given personally to the 
 secretary, or in case there be no secretary then by being 
 given to any one director of the company, (u) 
 
 136. Notices requiring to be served by the company Service by 
 upon the shareholders may, unless expressly required to be gharehoiV 
 served personally, be served by the same being transmitted ers. 
 through the post directed according to the registered address 
 
 or other known address of the shareholder, within such 
 period as to admit of its being delivered in the due course 
 of delivery within the period (if any) prescribed for the 
 giving of such notice: and in proving such service it shall 
 be sufficient to prove that such notice was properly directed, 
 and that it was so put into the post office. 
 
 137. All notices directed to be given to the shareholders Notices to 
 shall with respect to any share to which persons are jointly J°'."' P'"- 
 entitled, be given to whichever of the said persons shall be sha%°s" ° 
 named first in the register of shareholders; and notice so 
 
 given shall be sufficient notice to all the proprietors of such 
 share. 
 
 138. All notices required by this or the special act, or Notices by 
 any act incorporated therewith, to be given by advertise- ^'Ivefise- 
 ment, shall be advertised in the prescribed newspaper, or if 
 
 no newspaper be prescribed, or if the prescribed newspaper 
 cease to be published, in a newspaper circulating in the dis- 
 trict within which the company's principal place of business 
 shall be situated. 
 
 139. Every summons, notice, or other such document Authentica- 
 requiring authentication by the company, may be signed »!"" °^ °°" 
 by two directors, or by the treasurer or the secretary of the 
 company, and need not be under the common seal of the 
 company, and the same may be in writing or in print, or 
 
 partly in writing and partly in print. 
 
 (a) See Treatise, ante, c. VII.
 
 Proof of 
 debts in 
 bankruptcy. 
 
 Tender of 
 amends. 
 
 Recovery of 
 Damages 
 
 and 
 Penalties. 
 Provision 
 for damages 
 not other- 
 wise provi- 
 ded for. 
 
 Distress 
 against the 
 treasurer. 
 
 Appendix — Statutes. 
 
 140. And be it enacted, that if any person against whom 
 the company shall have any claim or demand become bank- 
 rupt, or take the benefit of any act for the relief of insol- 
 vent debtors, it shall be lawful for the secretary or treasurer 
 of the company, in all proceedings against the estate of 
 such bankrupt or insolvent, or under any fiat sequestra- 
 tion, or act of insolvency against such bankrupt or insol- 
 vent, to represent the company, and act in their behalf, in 
 all respects as if such claim or demand had been the claim 
 or demand of such secretary or treasurer, and not of the 
 company. 
 
 141. And be it enacted, that if any party shall have 
 committed any irregularity, trespass, or other wrongful pro- 
 ceeding in the execution (r) of this or the special act, or by 
 virtue of any power or authority thereby given, and if, 
 before action brought in respect thereof, such party make 
 tender of sufficient amends to the party injured, such last- 
 mentioned party shall not recover in any such action; and 
 if no such tender shall have been made, it shall be lawful 
 for the defendant, by leave of the court where such action 
 shall be pending, at any time before issue joined, to pay 
 into court such sum of money as he shall think fit ; and 
 thereupon such proceedings shall be had as in other cases 
 where defendants are allowed to pay money into court. 
 
 And with respect to the recovery of damages not spe- 
 cially provided for, and penalties, be it enacted as follows : 
 
 142. In all cases where any damages, costs, or expenses 
 are by this or the special act, or any act incorporated there- 
 with, directed to be paid, and the method of ascertaming 
 the amount or enforcing the payment thereof is not pi*o- 
 vided for, such amount, in case of dispute, shall be ascer- 
 tained and determined by two justices ; and if the amount 
 so ascertained be not paid by the company or other party 
 liable to pay the same within seven days after demand, the 
 amount may be recovered by distress of the goods of the 
 company or other party liable as aforesaid; and the justices 
 by whom the same shall have been ordered to be paid, or 
 either of them, on application, shall issue their or his war- 
 rant accordingly. 
 
 143. If sufficient goods of the company cannot be found 
 whereon to levy any such damages, costs, or expenses, pay- 
 
 (x) As to what to be deemed acts done in the execution of 
 the act, &c. see ante, c. VII.
 
 8 Vict. c. 1 6 — Companies Clauses. xci 
 
 able by the company, the same may, if the amount thereof 
 do not exceed twenty pounds, be recovered by distress of 
 the goods of the treasurer of the company ; and the justices 
 aforesaid, or either of them, on application, shall issue their 
 or his warrant accordingly : but no such distress shall issue 
 against the goods of such treasurer unless seven days pre- 
 vious notice in writing, stating the amount so due, and 
 demanding payment thereof, have been given to such trea- 
 surer, or left at his residence ; and if such treasurer pay 
 any money under such distress as aforesaid, he m.iy I'etain 
 the amount so paid by him, and all costs and expenses 
 occasioned thereby, out of any money belonging to the com- 
 pany coming into his custody or control, or he may sue 
 the company for the same. 
 
 144. Where in this or the special act, or any act incor- Method of 
 porated therewith, any question of compensation, expenses, wore^us? 
 charges, or damages is referred to the determination of any tices in ques- 
 one justice, or more, it shall be lawful for any justice, upon ''""* ''' _ 
 the application of either party, to summon the other party ^™^ses, 
 
 to appear before one justice, or before two justices, as the 
 case may require, at a time and place to be named in such 
 summons ; and upon the appearance of such parties, or in 
 the absence of any of them, upon proof of due service of the 
 summons, it shall be lawful for such one justice, or such two 
 justices, as the case may be, to hear and determine such 
 question, and for that purpose to examine such parties or 
 any of them, and their witnesses, on oath; and the costs of 
 every such inquiry shall be in the discretion of such justice*, 
 and they shall determine the amount thereof. 
 
 145. The company shall publish the short particulars of Publication 
 the several offences for which any penalty is imposed by of Penalties, 
 this or the special act, or any act incorporated therewith, or 
 
 by any bye law of the company affecting other persons than 
 the shareholders, officers, or servants of the company, and • 
 
 of the amount of every such penalty, and shall cause such 
 particulars to be painted on a board, or printed upon paper 
 and pasted thereon, and shall cause such board to be hung 
 up or affixed on some conspicuous part of the principal 
 place of business of the company, and where any such 
 penalties are of local application, shall cause such boards to 
 be affixed in some conspicuous place in the immediate 
 neighbourhood to which such penalties are applicable or 
 hare reference ; and such particulars shall be renewed as 
 often as the same or any part thereof is obliterated or 
 destroyed ; and no such penalty shall be recoverable unless 
 it shall have been published and kept published in the 
 manner herein-before required.
 
 xcii Appendix — Statutes. 
 
 Penalty for 146. If any person pull down or injure any board put up 
 boardTused "'" ^^xed as required by this or the special act, or any act 
 frirsuchpub- incorporated therewith, for the purpose of publishing any 
 lication. jjyg jjj^ Q^ penalty, or shall obliterate any of the letters or 
 figures thereon, he shall forfeit for every such offence a sum 
 not exceeding five pounds, and shall defray the expenses 
 attending the restoration of such board. 
 Penalties to 147. Every penalty or forfeiture imposed by this or the 
 recovered"'^ Special act, or any act incorporated there\vith, or by any 
 before two bye law made in pursuance thereof, the recovery of which 
 justices. is not otherwise provided for, may be recovered by summary 
 proceeding before two justices ; and on complaint being 
 made to any justice he shall issue a summons, requiring the 
 party complained against to appear before two justices at a 
 time and place to be named in such summons ; and every 
 such summons shall be served on the party oflending, either 
 in person or by leaving the same with some inmate at his 
 usual place of abode ; and upon the appearance of the party 
 complained against, or in his absence, after proof of the due 
 service of such summons, it shall be lawful for two justices 
 to proceed to the hearing of the complaint, and that although 
 no information in writing or in print shall have been exhi- 
 bited before them, and upon proof of the offence, either by 
 the confession of the party complained against, or upon the 
 oath of one credible witness or more, it shall be lawful for 
 such justices to convict the offender, and upon such con- 
 viction to adjudge the offender to pay the penalty or for- 
 feiture incurred, as well as such costs attending the con- 
 viction as such justices shall think fit. 
 Penalties 148. If forthwith upon any such adjudication as afore- 
 
 may be levied said, the amount of the penalty or forfeiture, and of such 
 costs as aforesaid, be not paid, the amount of such penalty 
 and costs shall be levied by distress ; and such justices, or 
 either of them, shall issue their or his warrant of distress 
 accordingly. 
 Imprison- 149. It shall be lawful for any such justice to order any 
 
 J?"""' '" "!*■ offender so convicted as aforesaid to be detained and kept in 
 tress. " safe custody until return can be conveniently made to the 
 warrant of distress to be issued for levying such penalty or 
 forfeiture, and costs, unless the offender give sufficient secu- 
 rity, by way of recognizance or otherwise, to the satisfacton 
 of the justice, for his appearance before him on the day 
 appointed for such return, such day not being more than 
 eight days from the time of taking such security , but if 
 before issuing such warrant of distress it shall appear to the 
 justice, by the admission of the offender or otherwise, that
 
 8 Vict. c. 16 — Companies Clauses. xciii 
 
 no sufficient distress can be had within the jurisdiction of 
 such justice whereon to levy such penalty or forfeiture, and 
 costs, he may, if he thinks fit, refrain from issuing such 
 warrant of distress; and in such case, or if such warrant 
 shall have been issued, and upon the return thereof such in- 
 sufficiency as aforesaid shall be made to appear to the justice, 
 then such justice shall, by warrant, cause such offender to be 
 committed to gaol, there to remain without bail for any 
 term not exceeding three months, unless such penalty or 
 forfeiture, and costs, be sooner paid and satisfied. 
 
 150. Where in this or the special act, or any act incor- Distress how 
 porated thesewith, any sum of money, whether in the nature '° ^^ levied. 
 of penalty or otherwise, is directed to be levied by distress, 
 
 such sum of money shall be levied by distress and sale of 
 the goods and chattels of the party liable to pay the same ; 
 and the overplus arising from the sale of such goods and 
 chattels, after satisfying such sum of money, and the ex- 
 penses of the distress and sale, shall be returned on demand, 
 to the party whose goods shall have been distrained. 
 
 151. No distress levied bv virtue of this or the special Distress not 
 
 1 S .^, 1 11 1 1 1 unlawful fur 
 
 act, or any act incorporated therewith, shall be deemed un- wantof form. 
 
 lawful, nor shall any party making the same be deemed a 
 trespasser, on account of any defect or want of form in the 
 summons, conviction, warrant of distress, or other proceed- 
 ing relating thereto, nor shall such party be deemed a 
 trespasser ab initio on account of any irregularity afterwards 
 committed by him, but all persons aggrieved by such defect 
 or irregularity may recover full satisfaction for the special 
 damage in an action upon the case. 
 
 1 52. The justices by whom any such penalty or forfeiture Application 
 shall be imposed may, where the application thereof is not of penalties, 
 otherwise provided for, award not more than one half thereof 
 
 to the informer, and shall award the remainder to the over- 
 seers of the poor of the parish in which the offence shall 
 have been connnitted, for the benefit of the poor of such 
 parish; or if the place wherein the offence shall have been 
 committed shall be extra-parochial, then such justices' shall 
 direct such remainder to be applied for the benefit of the 
 poor of such extra-parochial place, or of any adjoining 
 parish or district, and shall order the same to be paid over 
 to the proper officer for that purpose. 
 
 153. No person shall be liable to the payment of any Penalties to 
 penalty or forfeiture imposed by virtue of this or the special •"; '^"^^ ['"■ 
 act, or any act incorporated therewith, for any offence made months. * 
 cognizable, before a justice, unless the complaint respecting
 
 JJamage to 
 bemaiiegood 
 in addition 
 to penalty. 
 
 Appendix — Statutes . 
 
 such offence shall have been made before such justice within 
 six months next after the commission of such offence. 
 
 154. If, through any act, neglect, or default on account 
 whereof any person shall have incurred any penalty im- 
 posed by this or the special act, or any act incorporated 
 therewith, any damage to the property of the company shall 
 have been committed by such person, he shall be liable to 
 make good such damage, as well as to pay such penalty ; 
 and the amount of such damages shall, in case of dispute, 
 be determined by the justices by whom the party incurring 
 such penalty shall have been convicted ; and on non-pay- 
 ment of such damages, on demand, the same shall be levied 
 by distress, and such justices, or one of them, shall issue 
 their or his warrant accordingly. 
 
 155. It shall be lawful for any justice to summon any 
 person to appear before him as a witness in any matter in 
 which such justice shall have jurisdiction, under the pro- 
 visions of this or the special act, or any act incorporated 
 therewith, at a time and place mentioned in such summons, 
 and to administer to him an oath to testify the truth in such 
 matter ; and if any person so simimoned shall, without 
 reasonable excuse, refuse or neglect to appear at the time 
 and place appointed for that purpose, having been paid or 
 tendered a reasonable sum for his expenses, or if any person 
 appearing shall refuse to be examined upon oath or to give 
 evidence before such justice, every such person shall forfeit 
 a sum not exceeding five pounds for every such offence. 
 
 156. It shall be lawful for any officer or agent of the 
 company, and all persons called by him to his assistance, to 
 seize and detain any person who shall have committed any 
 offence against the provisions of this or the special act, or 
 any act incorporated therewith, and whose name and resi- 
 dence shall be unknown to such officer or agent, and convey 
 him, with all convenient despatch, before some justice, vnXh- 
 out any warrant or other authority than this or the special 
 act; and such justice shall proceed with all convenient 
 despatch to the hearing and determining of the complaint 
 against such offender. 
 
 157. The justices before whom anj' person shall be con- 
 victed of any offence against this or the special act, or any 
 act incorporated therewith, may cause the conviction to be 
 drawn up according to the form in the shedule (G.) to this 
 act annexed. 
 
 158. No proceeding in pursuance of this or the special 
 act, or any act incorporated therewith, shall be quashed or 
 
 I
 
 8 Vict, c. 16 — Companies Clauses. xcv 
 
 vacated for want of form, nor shall the same be removed by quashed for 
 certiorari or otherwise into any of the superior courts. {^) ^^"^^ °^^- 
 
 Appeal. 
 
 159. If any party shall feel aggrieved by any determi- ?"''*'?*''''. 
 .. / /. / „ .oo .,, •' •> . . lowed to lu- 
 nation or adjudication ot any justice with respect to any peai to quar- 
 
 penalty or forfeiture under the provisions of this or the ter sessions 
 special act, or any act incorporated therewith, such party ""cuHt'y!^ 
 may appeal to the general quarter sessions for the county 
 or place in which the cause of appeal shall have arisen ; 
 but no such appeal shall be entertained unless it be made 
 within four months next after the making of such determi- 
 nation or adjudication, nor unless ten days notice in writing 
 of such appeal, stating the nature and grounds thereof, be 
 given to the party against whom the appeal shall be brought, 
 nor unless the appellant forthwith after such notice enter 
 into recognizances, with two sufficient sureties, before a 
 justice, conditioned duly to prosecute such appeal, and to 
 abide the order of the court thereon. 
 
 160. At the quarter sessions for which such notice shall '^"l"'*" ^ 
 1 • 1111 11 11 • 1 make such 
 be given the court shall proceed to hear and determine the order as they 
 appeal in a summary way, or they may, if they think fit, think rea- 
 adjourn it to the following sessions; and upon the hearing ^°^^ 
 
 of such appeal the court may, if they think fit, mitigate any 
 penalty or forfeiture, or they may confirm or quash the 
 adjudication, and order any money paid by the appellant, 
 or levied by distress upon his goods, to be returned to him, 
 and may also order such further satisfaction to be made to 
 the party injured as they may judge reasonable ; and they 
 may make such order concerning the costs, both of the ad- 
 judication and of the appeal, as they may think reasonable. 
 
 And with respect to the pi'ovision to be made for affording ■^'^'i^f *? 
 access to the special act by all parties interested, be it 
 enacted as follows : 
 
 161. The company shall, at all times after the expiration Copies of 
 of six months after the passing of the special act, keep in to b"\e''pt 
 their principal office of business a copy of the special act, and depo- 
 printed by the printers to her Majesty, or some of them ; ^}[*^' "["y^,^ 
 and where the undertaking shall be a railway, canal, or other inspected, 
 like undertaking, the works of which shall not be confined 
 
 to one town or place, shall also within the space of such 
 six months, deposit in the office of each of the clerks of the 
 peace of the several counties into which the works shall 
 extend, and in tlie office of the town clerk of every burgh 
 
 {'j) As to effect of this clause, see Treatise, c. VII.
 
 xcvi Appendix — Statutes. 
 
 or city into which or within one mile of which the works 
 shall extend, a copy of such special act so printed as afore- 
 said ; and the said clerks of the peace and town clerks shall 
 receive, and they and the company respectively shall retain, 
 ' the said copies of the special act, and shall permit all persons 
 
 interested to inspect the same, and make extracts or copies 
 therefrom, in the like manner and upon the like terms and 
 under the like penalty for default as is provided in the case 
 of certain plans and sections, by an act passed in the first 
 7 W.4.& year of the reign of her present Majesty, intituled " An Act 
 1 Vict. c. 83. to compel Clerks of the Peace for Counties and other Persons 
 to take the Custody of such Documents as shall be directed 
 to be deposited with them under the Standing Orders of 
 either House of Parliament." 
 Penalty on 162. If the company shall fail to keep or deposit ashere- 
 tompany inbefore mentioned any of the said copies of the special act, 
 keep'o/de- ^hey shall forfeit twenty pounds for every such offence, and 
 posit such also five pounds for every day afterwards during which such 
 copies. copy shall be not so kept or deposited. 
 
 Act not to 153 And be it enacted, that this act shall not extend to 
 
 e«tenn to o ^i j 
 
 Scotland. Scotland. 
 
 For recover- 164. Provided always, and be it enacted, that if any 
 '"^intt ^ shareholder residing in Scotland shall fail to pay the amount 
 shareholders of any Call made upon him by the company in respect of 
 residing in ^ny share held by him, it shall be lawful for the company to 
 CO s,n . proceed against him in Scotland, and to sue for and recover 
 the amount of such call, or to declare such share forfeited, 
 in such manner as is by " The Companies Clauses Consoli- 
 dation ("Scotland) Act, 1845," in case the same shall pass 
 into a law, provided in regard to shareholders of any com- 
 pany in Scotland. 
 Art may be 165. And be it enacted, that this act may be amended 
 amended.&c. ^j. j-gpealed by any act to be passed in this session of par- 
 liament.
 
 8 Vict. c. 16. — Companies Clauses. xcvii 
 
 SCHEDULES referred to by the foregoing Act. 
 
 Schedule (A.) 
 
 Form of Certificate of Share. 
 
 " The Company." 
 
 Number 
 
 This is to certify, that A. B. of is the proprietor of the 
 
 share Number of "The Company," subject to the 
 
 regulations of the said company. Given under the common seal 
 of the said company, the day of in the year of our 
 
 Lord 
 
 Schedule (B.) 
 Form of Transfer of Shares or Stock. 
 
 I of in consideration of the sum of paid 
 
 to me by of do hereby transfer to the said 
 
 share [or shares], numbered in the undertaking called 
 
 "The Company"[or pounds consolidated stock in 
 
 the undertaking called " The Company," standing (or 
 
 part of the stock standing) in my name in the books of the com- 
 pany,] to hold unto the said his executors, administrators, 
 and assigns, \_or successors and assigns], subject to the several 
 conditions on which I held the same at the time of the execution 
 hereof; and I the said do hereby agree to take the said 
 share [or shares] [or stock], subject to the same conditions. As 
 witness our hands and seals, the day of 
 
 Schedule (C.) 
 Form of Mortgage Deed. 
 " The Company. " 
 
 Mortgage, Number £ 
 
 By virtue of [Aere name the special act^, we, " The 
 Company," in consideration of the sum of pounds paid to 
 
 ushy A. -B of , do assign unto the said A . B., his executors, 
 administrators, and assigns, the said undertaking, [and {in case 
 such loan shall be in anticipation of the capital authorized to be 
 raised) all future calls on shareholders,] and all the tolls and 
 sums of money arising by virtueof the said act, and all the estate, 
 right, title, and interest of the company in the same ; to hold unto 
 the said A. B., his executors, adminstrators and assigns, until 
 the said sum of pounds, together with interest for the same 
 
 E e
 
 1 
 
 Appendix — Statutes. 
 
 at the rale of for every one hundred pounds by the year, 
 
 be satisfied [the principal sum to be repaid at the end of 
 years from the date hereof (in case any period be agreed upon for 
 that purpose)^ [at or any place of pay merit other than the 
 
 principal office of the company']. Given under our common seal^. 
 this day of in the year of our Lord . 
 
 Schedule (D.) 
 
 Form of Bond. 
 
 " The Company. " 
 
 Bond, Number £ 
 
 By virtue of [Acre name the special act], we, " The 
 Company,'' in consideration of the sum of pounds, to us in 
 hand paid by ^. J5. of do bind ourselves and our succes- 
 
 sors unto the said ^. B., his executors, administrators, and 
 assigns, in the penal sum of pounds. 
 
 The condition of the above obligation is such, that if the said 
 company shall pay to the said A. B., his executors, administra- 
 tors, or assigns, [at (in case any other place of payment 
 than the principal office of the company be intended),] on the 
 day of which will be in the year one thousand eight 
 hundred and , the principal sum of pounds, toge- 
 ther with interest for the same at the rate of pounds per 
 centum per annum, payable half-yearly on the day of 
 and day of , then the above-written obligation is to 
 become void, otherwise to remain in full force. Given under 
 our common seal, this day of one thousand eight 
 hundred and 
 
 Schedule (E.) 
 
 Form of Transfer of Mortgage or Bond. 
 
 I A. B. of in consideration of the sum of paid to 
 
 me by G. /f. of do hereby transfer to the said G. H., his 
 
 executors, administrators, and assigns, a certain bond [^or mort- 
 gage,] Number made by " The Company " to 
 bearing date the day of for securing the sum of 
 and interest [or, if such transfer be by endorsement . 
 the within security], and all my right, estate, and interest in and 
 to the money thereby secured [and if the transfer be of a mort- 
 gage, and in and to the tolls, money, and property thereby 
 assigned]. In witness whereof I have hereunto set my hand 
 and seal, this day of one thousand eight hundred 
 and
 
 8 Vict. c. 16 — Companies Clauses. xcix 
 
 Schedule (F.) 
 
 Form of Proxy. 
 
 A. B. one of the proprietors of " The Company," 
 
 doth hereby appoint C. D. of to be the proxy of the said 
 
 A.B„ in his absence to vote in his name upon any matter relating 
 to the undertaking proposed at the meeting of the proprietors of 
 the said company to be held on the day of next, in 
 
 such manner as he the said C. D. doth think proper. In witness 
 whereof the said A. B. hath hereunto set his hand \^or if a cor. 
 poratiort, say the common seal of the corporation], the day 
 of one thousand eight hundred and 
 
 Schedule (G.) 
 
 Form of Conviction. 
 to wit. 
 Be it remembered, that on the day of in the year 
 
 of our Lord J. B. is convicted before us, C.,D., two of 
 
 her majesty's justices of the peace for the county of \_here 
 
 describe the offence generally, and the time and place when and 
 where committed^, contrary to the [Acre name the special act]. 
 Given under our hands and seals, the day and year first above 
 written. C. 
 
 D. 
 
 F.r 2
 
 Appendix — Statutes. 
 
 8 Vict. c. 18. 
 
 yln Act for consolidating in one Act certain Pro- 
 visions usually inserted in Acts authorizing the 
 taking of Lands for Undertakings of a Public 
 Nature. [8th May, 1845.] 
 
 Whereas it is expedient to comprise in one general act 
 
 sundry provisions usually introduced into acts of parliament 
 
 relative to the acquisition of lands required for undertakings 
 
 or works of a public nature, and to the compensation to be 
 
 made for the same, and that as well for the purpose of 
 
 avoiding the necessity of repeating such provisions in each 
 
 of the several acts relating to such undertakings as for 
 
 ensuring greater uniformity in the provisions themselves: 
 
 May it therefore please your Majesty that it may be enacted, 
 
 and be it enacted by the Queen's most excellent Majesty, 
 
 by and with the advice and consent of the lords spiritual 
 
 and temporal, and commons, in this present parliament 
 
 Act to apply assembled, and by the authority of the same, That this Act 
 
 to all under- shall apply to every undertaking authorized by any act 
 
 thorized by which shall hereafter be passed, and which shall authorize 
 
 acts here- the purchase or taking of lands for such undertaking, and 
 
 *asYed^° '"^ ^^^'^ ^^^ ^^^^^ ^^ incorporated with such act; and all the 
 
 clauses and provisions of this act, save so far as they shall 
 
 be expressly varied or excepted by any such act, shall apply 
 
 to the undertaking authorized thereby, so far as the same 
 
 shall be ajjplicable to such undertaking, and shall, as well as 
 
 the clauses and provisions of every other act which shall be 
 
 incorporated with such act, form part of such act, and be 
 
 construed, together therewith, as forming one act. 
 
 Interpreta- And with respect to I he construction of this act and of 
 
 tlons in this ^cts to be incorporated therewith, be it enacted as follows: 
 
 •'''^Special 2. The expression "the special act," used in this act, 
 
 act;" shall be construed to mean any act which shall be hereafter 
 
 passed which shall authorize the taking of lands for the 
 
 undertaking to which the same relates, and with which this 
 
 act shall be so incorporated as aforesaid; and the word 
 
 " Prescrib- "prescribed," used in this act in reference to any matter 
 
 ed;" herein stated, shall be construed to refer to such matter as 
 
 the same shall be prescribed or provided for in the special 
 
 act, and the sentence in which such word shall occur shall 
 
 be construed as if, instead of the word " prescribed," the 
 
 expression " prescribed for that purpose in the special act,"
 
 8 Vict. c. 18 — Lands Clauses. ci 
 
 had been used; and the expression "the works" or "the "The ^^ 
 undertaking" shall mean the works or undertaking, of ^''"'^ *' 
 whatever nature, which shall by the special act be authorized 
 to be executed; and the expression "the promoters of the "Promoters 
 undertaking" shall mean the parties, whether company, of the under- 
 undertakers, commissioners, trustees, corporations, or private ^^ '"^* 
 persons, by the special act empowered to execute such works 
 or undertaking. 
 
 3. The following words and expressions, both in this and J°*«^'P''^*^-. 
 the special act, shall have the several meanings hereby ^nd the spe- 
 assigned to them, unless there be something either in the ciai act ; 
 subject or context repugnant to such construction ; (that is 
 to say,) 
 
 Words importing the singular number only shall include Number; 
 the plural number, and words importing the plural 
 number only shall include the singular number : 
 Words importing the masculine gender only shall include Gender ; 
 
 females : 
 The word "lands" shall extend to messuages, lands, "Lands;" 
 
 tenements, and hereditaments of any tenure ; 
 The word "lease" shall include an agreement for a "Lease;" 
 
 lease : 
 The word " month" shall mean calendar month : "Month;" 
 
 The expression " superior courts" shall mean her Ma- "Superior 
 jesty's superior courts of record at Westminster or ""''"*; 
 Dublin, as the case may require : 
 The word "oath" shall include affirmation in the case "Oath;" 
 of Quakers, or other declaration lawfully substituted 
 for an oath in the case of any other persons exempted 
 by law from the necessity of taking an oath : 
 The word "county" shall include any riding or other "County;" 
 like division of a county, and shall also include county 
 of a city or county of a town : 
 The word " sheriff, " shall include under sheriff, or other "The she- ^ 
 legally competent deputy; and where any matter in riff;" 
 relation to any lands is required to be done by any 
 sheriff, or by any clerk of the peace, the expression 
 "the sheriff," or the expression "the clerk of the •< The Clerk 
 peace, " shall in such case be construed to mean the of the ^^ 
 sheriff or the clerk of the peace of the county, city, **'^*' 
 borough, liberty, cinque port, or place where such 
 lands shall be situate ; and if the lands in question, 
 being the property of one and the same party, be 
 situate not wholly in one county, city, borough, liberty, 
 cinque port, or place, the same expression shall be 
 construed to mean the sheriff or clerk of the peace of
 
 ' Justices :' 
 
 " Two jus. 
 tices;'' 
 
 " Ownerj" 
 
 'The bank.* 
 
 Short title of 
 the act. 
 
 Form in 
 which por. 
 tions of this 
 act may be 
 incorporated 
 with other 
 acts. 
 
 Appendix — Statutes. 
 
 any county, city, borough, liberty, cinque port, or place 
 where any part of such lands shall be situate : 
 
 The word "justices " shall mean justices of the peace 
 acting for the county, city, liberty, cinque port, or 
 place where the matter requiring the cognizance of 
 any such justice shall arise, and who shall not be 
 interested in the matter ; and where such matter shall 
 arise in respect of lands being the property of one and 
 the same party, situate not only in any one county, 
 city, borough, liberty, cinque port, or place, the same 
 shall mean a justice acting for the county, city, bo- 
 rough, liberty, cinque port, or place where any part of 
 such lands shall be situate, and who shall not be in- 
 terested in such matter ; and where any matter shall 
 be authorized or required to be done by two justices, 
 the expression "two justices " shall be understood to 
 mean two justices assembled and acting together : 
 
 Where under the provisions of this or the special act, or 
 any act incorporated therewith, any notice shall be 
 required to be given to the owner of any lands, or where 
 any act shall be authorized or required to be done with 
 the consent of any such owner, the word " owner " 
 shall be understood to mean any person or corporation 
 who, under the provisions of this or the special act, 
 would be enabled to sell and convey lands to the pro- 
 moters of the undertaking : 
 
 The expression "the bank" shall mean the Bank of 
 England where the same shall relate to monies to be 
 paid ordepositedin respect of lands situate in England, 
 and shall mean the Bank of Ireland where the same 
 shall relate to monies to be paid or deposited in respect 
 of lands situate in Ireland. 
 
 4. And be it enacted, that in citing this act in other 
 acts of parliament, and in legal instruments, it shall be suf- 
 ficient to use the expression " The Lands Clauses Consoli- 
 dation Act, 1845." 
 
 5. And whereas it may be convenient in some cases to 
 incorporate Avith acts of parliament hereafter to be passed 
 some portion only of the provisions of this act; be it there- 
 fore enacted, that, for the purpose of making any such in- 
 corporation, it shall be sufficient in any such act to enact 
 that the clauses of this act with respect to the matter so 
 proposed to be incorporated (describing such matter as it is 
 described in this act in the words introductory to the enact- 
 ment with respect to such matter,) shall be incorporated 
 with such act, and thereupon all the clauses and provisions
 
 8 Vict. c. 18 — Lands Clauses. ciii 
 
 of this act with respect to the matter so incorporated shall, 
 save so far as they shall be expressly varied or excepted by 
 such act, form part of such act, and such act shall be con- 
 strued as if the substance of such clauses and provisions 
 were set forth therein with reference to the matter to which 
 such act shall relate. 
 
 And with respect to the purchase of lands by agreement, Purchase 
 be it enacted as follows : "/ Lands by 
 
 6. Subject to the provisions of this and the special act it „ ^'^^^'" • 
 shall be lawful for the promoters of the undertaking to agree purchase 
 with the owners of any lands by the special act authorized lands by 
 to be taken, and which shall be required for the purposes of *8''*^"'^"*- 
 such act, and with all parties having any estate or interest 
 
 in such lands, or by this or the special act enabled to sell 
 and convey the same, for the absolute purchase, for a con- 
 sideration in money, of any such lands, or such parts thereof 
 as they shall think proper, and of all estates and interests 
 in such lands of what kind soever. 
 
 7. It shall be lawful for all parties, being seised, pos- Parties un- 
 sessedof, or entitled to any such lands, or any estate or in- "1" disability 
 
 . .1 • , 11 1 1 1 1 enabled to 
 
 terest therem, to sell and convey or release the same to the sell and con- 
 promoters of the undertaking, and to enter into all neces- vey. 
 sary agreements for that purpose; and particularly it shall 
 be lawful for all or any of the following parties so seised, 
 possessed, or entitled as aforesaid so to sell, convey or re- 
 lease; (that is to say,) all corporations, tenants in tail or for 
 life, married women seised in their own right or entitled to 
 dower, guardians, committees of lunatics and idiots, trustees 
 or feoffees in trust for charitable or other purposes, executors 
 and administrators, and all parties for the time being en- 
 titled to the receipt of the rents and pi-ofits of any such lands 
 in possession or subject to any estate in dower, or to any 
 lease for life, or for lives and years, or for years, or any less 
 interest; and the power so to sell and convey or release as 
 aforesaid may lawfully be exercised by all such parties, other 
 than married women entitled to dower, or lessees for life, or 
 for lives and years, or for years, or for any less interest, not 
 only on behalf of themselves and their respective heirs, ex- 
 ecutors, administrators, and successors, 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, and as to such married women, whether they be 
 of full age or not, as if they were sole and of full age, and as 
 to such guardians, on behalf of their wards, and as to such 
 committees, on behalf of the lunatics and idiots of whom
 
 civ Appendix — Statutes. 
 
 they are the committees respectively, and that to the same 
 extent as such wives, wards, kmatics and idiots respectively 
 could have exercised the same power under the authority 
 of this or the special act if they had respectively been under 
 no disability, and as to such trustees, executors, and admi- 
 nistrators, on behalf of their cestuique trusts, whether in- 
 fants, issue unborn, lunatics, femes covert, or other per- 
 sons, and that to the same extent as such cestuique trusts 
 respectively could have exercised the same powers under the 
 authority of this and the special act if they had respectively 
 been under no disability. 
 Parties iin- g_ jj^g power hereinafter given to enfranchise copyhold 
 
 der disability , j i^ o • j ^ u • j 
 
 to exercise lands, as well as every other power required to be exercised 
 other pow- by the lord of any manor pursuant to the provisions of this 
 *''^" or the special act, or any act incorporated therewith, and 
 
 the power to release lands from any rent, charge, or incum- 
 brance, and to agree for the apportionment of any such 
 rent, charge, or incumbrance, shall extend to and may law- 
 fully be exercised by every party hereinbefore enabled to 
 sell and convey or release lands to the promoters of the 
 undertaking. 
 Amount of 9. The purchase money or compensation to be paid for 
 compensa- any lands to be purchased or taken from any party under 
 ofparties'un- ^^Y disability or incapacity, and not having power to sell or 
 der disability convey such lands except under the provisions ofthisorthe 
 '"■'^^fi^h'^^'^' sp^<^i^l ^^^> 3"d the compensation to be paid for any per- 
 valuation, manent damage or injury to any such lands, shall not, ex- 
 end paid into cept where the same shall have been determined by the 
 the bank. verdict of a jury, or by arbitration, or by the valuation of a 
 surveyor appointed by two justices under the provision 
 hereinafter contained, be less than shall be determined by' 
 the valuation of two able practical surveyors, one of whom 
 shall be nominated by the promoters of the undertaking, 
 and the other by the other party, and if such twosurveyors 
 cannot agree in the valuation, then by such third surveyor 
 as any two justices shall upon application of either party, 
 after notice to the other party, for that purpose nominate ; 
 and each of such two surveyors if they agree, or if not then 
 the surveyor nominated by the said justices, shall annex to 
 the valuation a declaration in writing, subscribed by them 
 or him, of the correctness thereof; and all such purchase 
 money or compensation shall be deposited in the bank for 
 the benefit of the parties interested, in manner hereinafter 
 mentioned. 
 HTiere ven- 10. It shall be lawful for any person seised in fee of, or 
 dor abso- entitled to dispose of absolutely for his own benefit, any
 
 8 Vict, c. 18 — Lands Clauses. cv 
 
 lands authorized to be purchased for the purposes of the lutely en- 
 special act to sell and convey such lands or any part thereof tit'ed. lands 
 . , , 1 ^ jy ^1 J i. 1 • • -J J.- c i"ay be sold 
 
 unto the promoters oi the undertakuig, in consideration oi on chief 
 
 an annual rent-charge payable by the promoters of the un- rents, 
 dertaking, but, except as aforesaid, the consideration to be 
 paid for the purcliase of any such lands, or for any damage 
 done thereto, shall be in a gross sum. 
 
 11. The yearly rents reserved by any such conveyance Payment of 
 shall be charged on the tolls or rates, if any, payable under ''^"'s to be 
 the special act, and shall be otherwise secured in such man- toiuf^ "" 
 ner as shall be agreed between the parties, and shall be paid 
 
 by the promoters of the undertaking as such rents become 
 payable; and if at any time any such rents be not paid 
 within thirty days after they so became payable, and after 
 demand thereof in writing, the person to whom any such 
 rent shall be payable may either recover the same from the 
 promoters of the undertaking, with costs of suit, by action 
 of debt in any of the superior courts, or it shall be lawful 
 for him to levy the same by distress of the goods and chat- 
 tels of the promoters of the undertaking. 
 
 12. In case the promoters of the undertaking shall be Power to 
 empowered by the special act to purchase lands for extra- purchase 
 ordinary purposes, it shall be lawful for all parties who, nu'ireVfor 
 under the provisions hereinbefore contained, would be ena- additional 
 bled to sell and convey lands, to sell and convey the lands ^.ccommoda- 
 so authorized to lie purchased for extraordinary purposes. 
 
 13. It shall be lawful for the promoters of the under- Authority to 
 taking to sell the lands which they shall have so acquired '*'^" "'"^ •■«- 
 for extraordinary purposes, or any part thereof, in such ^^ll^ fa^nds. 
 manner and for such considerations, and to such persons, 
 
 as the promoters of the undertaking may think fit, and again 
 to purchase other lands for the like purposes, and afterwards 
 sell the same, and so from time to time; but the total 
 quantity of land to be held at any one time by the pro- 
 moters of the undertaking, for the purposes aforesaid, shall 
 not exceed the purscribed quantity. 
 
 14. The promoters of the undertaking shall not, by virtue Restraint on 
 of the power to purchase land for extraordinary purposes, purchase 
 purchase more than the prescribed quantity from any party c^°i^ed"pe'r-' 
 under legal disability, or who would not be able to sell and sons, 
 convey such lands except under the powers of this and the 
 
 special act ; and if tlie promoters of the undertaking pur- 
 chase tlie said quantity of land from any party under such 
 legal disability, and afterwards sell the whole or any part 
 of the land so purchased, it shall not be lawful for any party 
 being under legal disability to sell to the promoters of the 
 E E 5
 
 cvi Appendix-^Statutes. 
 
 undertaking any other lands in lieu of the land so sold or 
 
 disposed of by them. 
 
 Municipal 15. Nothing in this or the special act contained shall 
 
 nouo'^seu"* enable any municipal corporation to sell for the purposes of 
 
 without the the special act, without the approbation of the commis- 
 
 "f th°'t^''°° sioners of her Majesty's treasury of the united kingdom of 
 
 sury. " Great Britain and Ireland, or any three of them, any lands 
 
 which they could not have sold without such approbation 
 
 before the passing of the special act, other than such lands 
 
 as the company are by the powers of this or the special act 
 
 empowered to purchase or take compulsorily.(a) 
 
 Purchase And with respect to the purchase and taking of lands 
 otherwise otherwise than by agreement, be it enacted as follows : 
 than by 16. Where the undertaking is intended to be carried 
 Agreement. JjjJq effg^t by means of a capital to be subscribed by the 
 Capital to be •^ , , i • '^ i i i /. i -i. ^ 
 
 subscribed promoters ot the undertakmg, the whole ot the capital or 
 before com- estimated sum for defraying the expenses of the undertaking 
 povve'rJof shall besubscribed undercontractbindingthepartiesthereto, 
 purchase put their heirs, executors, and administrators, for the payment 
 in force. ^f jj^g several sums by them respectively subscribed, before 
 it shall be lawful to put in force any of the powers of this or 
 the special act, or any act incorporated therewith, in relation 
 to the compulsory taking of land for the purposes of the 
 undertaking. 
 A certificate 17. A certificate imder the hands of two justices, certi- 
 ticerto be' fy'"?^ ^^^^ '•'^^ whole of the prescribed sum has been sub- 
 evidence scribed, shall be sufficient evidence thereof; and on the ap- 
 thatthe cap. plication of the promoters of the undertaking, and the pro- 
 subscribedi duction of such evidence as such justices think proper and 
 sufficient, such justices shall grant such certificate accord- 
 ingly. 
 Notice of in. 18. When the promoters of the undertaking shall require 
 t^"*'"" 'o to purchase or take any of the land which by this or the 
 special act, or any act incorporated therewith, they are 
 authorized to purchase or take, they shall give notice thereof 
 to all the parties interested in such lands, or to the parties 
 enabled by this act to sell and convey or release the same, 
 or such of the said parties as shall, after diligent inquirj', 
 be known to the promoters of the undertaking, and by such 
 notice shall demand from such parties the particulars of 
 their estate and interest in such lands, and of the claims 
 
 (a) As to powers of alieniation enjoyed by municipal cor- 
 porations and the limitations thereon, see 5 & 6 W. IV. c. 76, 
 S8. 94—96, 

 
 8 Vict. C. 18 — Lands Clauses. cvii 
 
 Made by them in respect thereof; and every such notice 
 shall state the particulars of the land so required, and that 
 the promoters of the undertaking are willing to treat for the 
 purchase thereof, and as to the compensation to be made to 
 all parties for the damage that may be sustained by them 
 by reason of the execution of the works. (6) 
 
 19. All notices required to be served by the promoters of Service of 
 the undertaking upon the parties interested in or entitled to owners and 
 sell any such lands shall either be served personally on such occupiers of 
 parties or left at their usual place of abode, if any such can '^"'*^- 
 after diligent inquiry be found, and in case any such parties 
 
 shall be absent from the United Kingdom, or cannot be 
 found after diligent inquiry, shall also be left with the oc- 
 cupier of such lands, or, if there be no such occupier, shall 
 be affixed upon some conspicuous part of such lands. 
 
 20. If any such party be a corporation aggregate such Service of 
 notice shall be left at the principal office of business of "orp^a'thin 
 such corporation, or, if no such office can after diligent in- aggregate. 
 quiry be found, shall be served on some principal member, 
 
 if any, of such corporation, and such notice shall also be 
 left with the occupier of such lands, or, if there be no such 
 occupier, shall be affixed upon some conspicuous part of 
 such lands. 
 
 21. If, for twenty-one days after the service of such no- If parties 
 tice, any such party shall fail to state the particulars of his o^'\n°case '^f 
 claim in respect of any such land, or to treat with the pro- dispute, 
 moters of the undertaking in respect thereof, or if such question to 
 party and the promoters of the undertaking shall not agree afj^j nj^n. 
 as to the amount of the compensation to be paid by the pro- tioned. 
 moters of the undertaking for the interest in such lands be- 
 longing to such party, or which he is by this or the special 
 
 act enabled to sell, or for any damage that may be sustained 
 by him by reason of the execution of the works, the amount 
 of such compensation shall be settled in the manner herein- 
 after provided for settling cases of disputed compensa- 
 tion. (c) 
 
 (6) As to effect of notice generally, and as to its requisites 
 under analogous provisions of particular acts, see Treatise, 
 pp. 198, 199. 
 
 (c) Looking at the provisions of the present act for settling 
 cases of disputed compensation, it would seem that in cases 
 where recourse is had to the verdict of a sheriff's jury, the in- 
 quisition should on the face of it state such facts as to exclude 
 the two other metliods appointed by the act for the purpose in 
 question.
 
 cviii Appendix — Statuteg. 
 
 Disputes as 22. If no agreement be come to between the promotefsf 
 sation"where ^^ ^'^^ vmdertaking and the owners of or parties by this act 
 the amount enabled to sell and convey or release any lands taken or 
 claimed does required for or injuriously aifected by the execution of the 
 50;. to be undertaking, or any interest in such lands, as to the value 
 settled by of such lands or of any interest therein, or as to the com- 
 two justices, pensation to be made in respect thereof, and if in any such 
 case the compensation claimed shall not exceed fifty pounds, 
 the same shall be settled by two justices, (d) 
 Compensa- 23. If the Compensation claimed or offered in any such 
 ine^sortrbe ^^^^ ^^^^'' exceed fifty pounds, and if tlie party claiming 
 settled by Compensation desire to have the same settled by arbitration, 
 arbitration and signify such desire by notice in writing to the promoters 
 
 or iurv a.t the . . ^ t 
 
 option of the ^^ the undertaking, before they have issued their warrant to 
 party claim- the sheriff to summon a jury in respect of such lands, under 
 s"fi ^^™P*"' the provisions hereinafter contained, stating in such notice 
 the nature of the interest in respect of which such party 
 c'aims compensation, and the amount of the compensation 
 so claimed, the same shall be so settled accordingly; but 
 unless the party claiming compensation shall as aforesaid 
 signify his desire to have the question of such compensation 
 settled by arbitration, or if when the matter shall have been 
 refei-red to arbitration the arbitrators or their umpire shall 
 for three months have failed to make their or his award, or 
 if no final award shall be made, the question of such com- 
 pensation shall be settled by the verdictof a jury, as herein^ 
 after provided (d) 
 Method of 24. It shall be lawful for anyjustice, upon the application 
 proceeding of either party with respect to any question of disputed 
 
 for settling f- i »L- S • i . ^ ■ 
 
 disputes as Compensation by this or the special act, or any act mcorpo- 
 to compen- rated -therewith, authorized to be settled by two justices, to 
 fj'*t°" ,'^* summon the other party to appear before two justices, at a 
 time and place to be named in the summons, and upon the 
 appearance of such parties, or in the absenceof any of them, 
 upon proof of due service of the summons, it shall be lawful 
 for such justices to hear and determine such ([uestion, and 
 for that purpose to examine such parties or any of them, 
 and their witne.ises, upon oath, and the costs of every such 
 inquiry shall be in the discretion of such justices, and they 
 shall settle the amount thereof. 
 
 (f/) Quaere whether this and the subsequent clause apply to 
 cases where, on the receipt of the notice, the opposite party al- 
 together lies bye and takes no notice of the company's proceed- 
 ing. In such cases therefore, Scmble it would be competent 
 for the company to issue their warrant for a jury.
 
 8 Vict. c. 18 — Lands Clauses. cix 
 
 25. When any question of disputed compensation by this Appoint- 
 or the special act, or any act incorporated therewith, autho- bitraior ^'^ 
 rized or required to be settled by arbitration, shall have when ques- 
 arisen, then, unless both parties shall concur in the appoint- ''°"s "^ to 
 ment of a single arbitrator, each party, on the request of mined by 
 the other party, shall nominate and appoint an arbitrator, arbitration. 
 to whom such disputes shall be referred ; and every ap- 
 pointment of an arbitrator shall be made on the part of the 
 promoters of the undertaking under the hands of the said 
 promoters or any two of them, or of their secretary or clerk, 
 and on the part of any other party under the hand of such 
 party, or if such party be a corporation aggregate, under 
 the common seal of such corporation; and such appoint- 
 mentshall be delivered to the arbitrator, and shall be deemed 
 a submission to arbitration on the part of the party by whom 
 the same shall be made; and after any such appointment 
 shall have been made neither party shall have power to 
 revoke the same without the consent of the other, nor shall 
 the death of either party operate as a revocation; and if for 
 the space of fourteen days after any such dispute shall have 
 arisen, and after a request in writing, in which shall be 
 stated the matter so required to be referred to arbitration, 
 shall have been served by the one party on the other party 
 to appoint an arbitrator, such last-mentioned party fail to 
 appoint such arbitrator, then upon such failure the party 
 making the request, and having himself appointed an arbi- 
 trator, may appoint such arbitrator to act on behalf of both 
 parties, and such arbitrator may proceed to hear and deter- 
 mine the matters which shall be in dispute, and in such 
 case the award or determination of such single arbitrator 
 shall be final. 
 
 26. If, before the matters so referred shall be determined. Vacancy uf 
 any arbitrator appointed by either party die, or become in- ^g'^j^ ^'°/^ d" 
 capable, the party by whom such arbitrator was appointed 
 
 may nominate and appoint in writing some other person to 
 act in his place, and if, for the space of seven days after no- 
 tice in writing from the other party for that purpose, he fail 
 to do so, the remaining or other arbitrator may proceed ex 
 parte; and every arbitrator so to be substituted as aforesaid 
 shall have the same powers and authorities as were vested 
 in the former arbitrator at the time of such his death or 
 disability as aforesaid. 
 
 27. Where more than one arbitrator shall have been ap- Ajjpoint- 
 pointed sucli arbitrators shall, before they enter upon the "]^"' °^ """* 
 matters referred to them, nominate and appoint, by writing
 
 ex 
 
 Board of 
 trade em- 
 powered to 
 appoint an 
 umpire on 
 neglect of 
 the arbitrai- 
 tors, in case 
 of railway 
 companies. 
 
 In case of 
 deaih of 
 single arbi- 
 trator the 
 matter to be- 
 gin de novo. 
 
 If either ar- 
 bitrator re- 
 fuse to act 
 the other to 
 proceed ex 
 parte. 
 
 Ifarbitrators 
 fail to make 
 their award 
 within 
 twenty one 
 days the 
 matter to go 
 to the um- 
 pire. 
 
 Power of 
 arbitrators 
 to call for 
 books, &c. 
 
 Arbitrator or 
 umpire to 
 
 Appendix — Statutes. 
 
 under their hands, an umpire to decide on any such matters 
 on which they shall differ, or which shall be referred to him 
 under the pi'ovisions of this or the special act, and if such 
 umpire shall die, or become incapable to act, they shall 
 forthwith after such death or incapacity appoint another 
 umpire in his place, and the decision of every such umpire 
 on the matters so referred to him shall be final. 
 
 2R, If in either of the cases aforesaid the said arbitrators 
 shall refuse, or shall, for seven days after request of either 
 party to such arbitration, neglect to appoint an umpire, the 
 board of trade, in any case in which a railway company 
 shall be one party to the arbitration, and two justices in any 
 other case, shall, on the application of either party to such 
 arbitration, appoint an umpire, and the decision of such 
 umpire on the matters on which the arbitrators shall differ, 
 or which shall be referred to him under this or the special 
 act, shall be final. 
 
 29. If, when a single arbitrator shall have been appointed, 
 such arbitrator shall die or become incapable to act before 
 he shall have made his award, the matters referred to him 
 shall be determined by arbitration under the provisions of 
 this or the special act in the same manner as if such arbi- 
 trator had not been appointed. 
 
 30. If, where more than one arbitrator shall have been 
 appointed, either of the arbitrators refuse or for seven days 
 neglect to act the other arbitrator may proceed ex parte, 
 and the decision of such other arbitrator shall be as effectual 
 as if he had been the single arbitrator appointed by both 
 parties. 
 
 31. If where more than one arbitrator shall have been 
 appointed, and where neither of them shall refuse or neg- 
 lect to act as aforesaid, such arbitrators shall fail to make 
 their award within twenty-one days after the day on which 
 the last of such arbitrators shall have been appointed, or 
 within such extended time (if any) as shall have been ap- 
 pointed for that purpose by both such arbitrators under 
 their hands, the matters referred to them sliall be deter- 
 mined by the umpire to be appointed as aforesaid. 
 
 32. The said arbitrators or their umpire may call for 
 the production of any documents in the possession or power 
 of either party which they or he may think necessary for 
 determining the question in dispute, and may examine the 
 parties or their witnesses on oath, and administer the oaths 
 necessary for that purpose. 
 
 33. Before any arbitrator or umpire shall enter into the 
 consideration of any matters referred to him, he shall in the
 
 8 Vict. c. 18 — Lands Clauses. cxi 
 
 presence of a justice make and subscribe the following de- "^J^^y^^*" 
 claration ; that is to say. 
 ' I, A. B. do solemnly and sincerely declare, that I will 
 ' faithfully and honestly, and to the best of my skill 
 ' and ability hear and determine the matters referred 
 ' to me under the provisions of the act [naming the 
 ' special act]. A. B. 
 
 ' Made and subscribed in the presence of 
 And such declaration shall be annexed to the award when 
 made ; and if any arbitrator or umpire having made such 
 declaration shall wilfully act contrary thereto he shall be 
 guilty of a misdemeanor. 
 
 34. All the costs of any such arbitration, and incident Costs of arbi- 
 thereto, to be settled by the arbitrators, shall be borne by ll''^°^Ji°Z 
 the promoters of the undertaking, unless the arbitrators 
 
 shall award the same or a less sum than shall have been 
 olFered by the promoters of the undertaking, in which case 
 each party shall bear his own costs incident to the arbitra- 
 tion, and the costs of the arbitrators shall be borne by the 
 parties in equal proportions. 
 
 35. The arbitrators shall deliver their award in writing Award to he 
 to the promoters of the undertaking, and the said promoters deiiyered to 
 shall retain the same, and shall forthwith, on demand, at motereofthe 
 their own expence, fui'nish a copy thereof to the other undertaking, 
 party to the arbitration, and shall at all times, on demand, 
 produce the said award, and allow the same to be inspected 
 
 or examined by such party or any person appointed by him 
 for that purpose. 
 
 36. The submission to any such arbitration may be made submis?ion 
 a rule of any of the superior courts, on the application of may be made 
 
 VI. ci. f a rule of 
 
 either ot the parties. court. 
 
 37. No award made with respect to any question referred Award not 
 to arbitration under the provisions of this or the special ^°"^ through 
 act shall be set aside for irregularity or error in matter form. 
 
 of form. 
 
 38. Before the promoters of the undertaking shall issue Promoters of 
 their warrant for summoning a jury for settling any case of t^i^/'n^^"- 
 disputed compensation they shall give not less than ten days give notice 
 notice to the other party of their intention to cause such before sum. 
 jury to be summoned, and in such notice the promoters of j™"".'"^ ** 
 the undertaking shall state what sum of money they are 
 
 willing to give for the interest in such lands sought to be 
 purchased by them from such party, and for the damage 
 to be sustained by him by the execution of such works. 
 
 39. In every case in which any such question of dis- Warrant for 
 puted compensation shall be required to be determined by jui^'to'be"^
 
 cxii Appendix — Statutes. 
 
 th'^'^h^^^'ff'" *''^ verdict of a jury, the promoters of the undertaking 
 shall issue their warrant to the sheriff, requiring him to 
 summon a jury for that purpose, and such warrant shall be 
 under the common seal of the promoters of the under- 
 taking if they be a corporation, or if they be not a corpo- 
 ration under the hands and seals of such promoters or any 
 two of them; and if such sheriff be interested in the matter 
 in dispute such application shall be made to some coroner 
 of the county in which the lands in question, or some part 
 thereof, shall be situate, and if all the coroners of such 
 county be so interested, such application may be made to 
 some person having filled the office of sheriff or coroner in 
 such county, and who shall be then living there, and who 
 shall not be interested in the matter in dispute; and with 
 respect to the persons last mentioned preference shall be 
 given to one who shall have most recently served either 
 of the said offices ; and every ex-sheriff, coroner, or ex- 
 coroner shall have power, if he think fit, to appoint a de- 
 puty or assessor ( /'). 
 Provisions 40. Throughout the enactments contained in this act re- 
 
 appiicabieto lating to the reference to a jury, where the term " sheriff" 
 appVy to° '•'^ used, the provisions applicable thereto shall be held to 
 coroner. apply to every coroner or other person lawfully acting in 
 his place; and in every case in which any such warrant 
 shall have been directed to any other person than the sheriff, 
 such sheriff shall, immediately on receiving notice of the 
 delivery of the warrant, deliver over, on application for 
 that purpose, to the person to whom the same shall have 
 been directed, or to any person appointed by him to receive 
 the same, the jurors book and special jurors list belonging 
 to the coiuity where the lands in question shall be situate. 
 Jury to be 4], Upon the receipt of such warrant the sheriff shall 
 
 Nummoned. . c .. ^ v ■ j-a- i. i 1 
 
 summon a jury of twenty-tour indirterent persons, duly 
 
 qualified to act as common jurymen in the superior courts, 
 to meet at a convenient time and place to be apjiointedby 
 him for that purpose, such time not being less than four- 
 teen nor more tiian twenty-one days after the receipt of 
 such warrant, and such place not being more than eight 
 miles distant from the lands in question, imless by consent 
 
 (y) As to the effect of analogous clauses in particular rail- 
 way acts, and more particularly as to the consequences of mis- 
 directing the warrant, see Treatise, pp. '202,203; and Corrigall v. 
 London and Biackwall Railway Company , 5 M. * G. 219 ; S. C. 
 21 Law Journ. C. P. 216. See also, as to power of appointing 
 deputy, Treatise, p. 202.
 
 8 Vict.c. 18 — Lands Clauses. cxiii 
 
 of the parties interested, and he shall forthwith give notice 
 to the promoters of the works of the time and place so 
 appointed by him. 
 
 42. Out of the jurors appearing upon such summons a Jury to be 
 jury of twelve persons shall be drawn by the sheriff, in impanelled, 
 such manner as juries for trials of issues joined in the su- 
 perior courts are by law required to be drawn, and if a 
 sufficient number of jurymen do not appear in obedience 
 
 to such summons the sheriff shall return other indifferent 
 men, duly qualified as aforesaid, of the bystanders, or others 
 that can speedily be procured, to make up the jury to the 
 number aforesaid ; and all parties concerned may iiave 
 their lawful challenges, against any of the jurymen, but no 
 such party shall challenge the array. 
 
 43. The sheriff shall preside on the said inquiry, and the Sheriff to 
 party claimingcompensation shall be deemed the(g) plaintiff, ngg|e'^*^"|,e" 
 and shall have all such rights and privileges as the plaintiff summoned, 
 is entitled to in the trial of actions at law ; and if either 
 
 party so request in writing, the sheriff shall summon before 
 him any person considered necessary to be examined as a 
 witness touching the matters in question, and on the like 
 request the sheriff shall order the jury, or any six or more 
 of them, to view the place or matter in controversy, in like 
 manner as views may be had in the trial of actions in the 
 superior courts. 
 
 44. If the sheriff make default in any of the matters Penalty on 
 hereinbefore required to be done by him in relation to any sheriff and 
 such trial or inquiry, he shall forfeit fifty pounds for every default, 
 such offence, and such penalty shall be recoverable by the 
 promoters of the undertaking by action in any of tlie su- 
 perior courts ; and if any person summoned and returned 
 
 upon any jury under this or the special act, whether com- 
 mon or special, do not appear, or if appearing, he refuse 
 to make oath, or in any other manner unlawfully neglect 
 his duty, he shall, unless he show reasonable excuse to the 
 satisfaction of the sheriff, forfeit a sum not exceeding ten 
 pounds ; and every such penalty payable by a sheriff or 
 juryman shall be applied in satisfaction of the costs of the 
 inquiry, so far as the same will extend ; and, in addition to 
 the penalty hereby imposed, every such juryman shall be 
 subject to the same regulations, pains, and penalties as if 
 such jury had been returned for the trial of an issue joined 
 in any of the superior courts. 
 
 43. If any person duly summoned to give evidence upon Penalty on 
 
 (g) As to effect of this provision, see Treat, ante, p. 227.
 
 witnesses 
 making de- 
 fault. 
 
 Notice of 
 inquiry. 
 
 If the party 
 mahe default 
 the inquiry 
 not to pro- 
 ceed. 
 
 Jury to be 
 sworn. 
 
 Sums to be 
 paid for pur- 
 chase of 
 lands and for 
 damage, to 
 be assessed 
 separately. 
 
 Verdict and 
 iudgment to 
 be recorded, 
 
 Appendix — Statutes . 
 
 any such inquir}', and to whom a tender of his reasonahle 
 expenses shall have been made, fail to appear at the time 
 and place specified in the summons without suflBcient cause, 
 or if any person, whether summoned or not, who shall 
 appear as a witness, refuse to be examined on oath touching 
 the subject matter in question, every person so offending 
 shall forfeit to the party aggrieved a sum not exceeding ten 
 pounds. 
 
 46. Not less than ten days notice of the time and place 
 of the inquiry shall be given in writing by the promoters of 
 the undertaking to the other party, 
 
 47. If the party claiming compensation shall not ap- 
 pear at the time appointed for the inquiry such inquiry shall 
 not be further proceeded in, but the compensation to be 
 paid shall be such as shall be ascertained by a surveyor 
 appointed by two justices in manner hereinafter provided. 
 
 48. Before the jury proceed to inquire of and assess the 
 compensation or damage in respect of which their verdict is 
 to be given they shall make oath that they will truly and 
 faithfully inquire of and assess such compensation or da- 
 mage, and the sheriff shall administer such oaths, as well as 
 the oaths of all persons called upon to give evidence. 
 
 49. Where such inquiry shall relate to the value of lands 
 to be purchased, and also to compensation claimed for injury 
 done or to be done to the lands held therewith, the jury 
 shall deliver their verdict separately for the sum of money 
 to be paid for the purchase of the lands required for the 
 works, or of any interest therein belonging to the party 
 with whom the question of disputed compensation shall 
 have arisen, or which, under the provisions herein-con- 
 tained, he is enabled to sell or convey, and for the sum of 
 money to be paid by way of compensation for the damage, 
 if any, to be sustained by the owner of the lands by reason 
 of the severing of the lands taken from the other lands of 
 such owner, or otherwise injuriously affecting such lands by 
 the exercise of the powers of this or the special act, or any 
 act incorporated therewith. (A) 
 
 50. The sheriff before whom such inquiry shall be held 
 shall give judgment for the purchase money or compensa- 
 tion assessed by such jury, and the verdict and judgment 
 shall be signed by the sheriff, and being so signed shall be 
 
 (A) Semble, this clause is to be construed as directory 
 rather than as imperative, and therefore an inquisition is not 
 necessarily void because its requisites are not complied with, 
 see Treatise, pp. 203, 204.
 
 8 Vict. c. 18 — Lands Clauses. cxv 
 
 kept by the clerk of the peace among the records of the 
 general or quarter sessions of the county in which the lands 
 or any part thereof shall be situate in respect of which such 
 purchase money or compensation shall have been awarded; 
 and such verdicts and judgments shall be deemed records, 
 and the same or true copies thei'eof shall be good evidence 
 in all courts and elsewhere, and all persons may inspect the 
 said verdicts and judgments, and may have copies thereof 
 or extracts therefrom, on paying for each inspection thereof 
 one shilling, and for every one hundred words copied or 
 extracted therefrom sixpence, which copies or extracts the 
 clerk of the peace is hereby required to make out, and to 
 sign and certify the same to be true copies, (i) 
 
 51. On every such inquiry before a jury, where the ver- costs of the 
 diet of the jury shall be given for a greater sum than the inquiry how 
 sum previously offered by the promoters of the undertaking, ^°^^ borne. 
 all the costs of such inquiry shall be borne by the promoters 
 
 of the undertaking ; but if the verdict of the jury be given 
 for the same or a less sum than the sum previously offered 
 by the promoters of the undertaking or if the owner of the 
 lands shall have failed to appear at the time and place ap- 
 pointed for the inquiry, having received due notice thereof, 
 one-half of the costs of summoning, impanelling, and re- 
 turning the jury, and of taking the inquiry and recording 
 the verdict and judgment thereon, in case such verdict shall 
 be taken, shall be defrayed by the owner of the lands, and 
 the other half by the promoters of the undertaking, and 
 each party shall bear his own costs, other than as aforesaid, 
 incident to such inquiry, (k) 
 
 52. The costs of any such inquiry shall, in case of dif- ParticularH 
 ference, be settled by one of the masters of the Court of "' ^^^ '=""'*• 
 Queen's Bench of England or Ireland, according as the 
 
 lands are situate, on the application of either party, and 
 such costs shall include all reasonable costs, charges, and 
 expenses incurred in summoning, impanelling, and return- 
 ing the jury, taking the inquiry, the attendance of witnesses, 
 the employment of counsel and attornies, recording the 
 verdict and judgment thereon, and otherwise incident to 
 such inquiry. (/) 
 
 (i) As to the effect of similar clause in prior acts, see Trea- 
 tise, p. 206, and p. 219. 
 
 (ic) As to costs of inquiry under prior acts, see Treat, ante, 
 pp. 226, 227. 
 
 (I) As to the operation of the provisions of particular acts 
 on this subject, see Treatise, pp. 227, 228.
 
 cxvi Appendix — Statutes. 
 
 Payment of 53, jf any such costs shall be payable by the promoters 
 of the undertaking, and if within seven days after demand 
 such costs be not paid to the party entitled to receive the 
 same, they shall be recoverable by distress, and on applica- 
 tion to any justice he shall issue his warrant accordingly ; 
 and if any such costs shall be payable by the owner of the 
 lands or of any interest therein, the same may be deducted 
 and retained by the promoters of the undertaking, out of 
 any money awarded by the jury to such owner, or deter- 
 mined by the valuation of a surveyor under the pro\'ision 
 hereinafter contained ; and the payment or deposit of the 
 remainder, if any, of such money shall be deemed payment 
 and satisfaction of the whole thereof, or if such costs shall 
 exceed the amount of the money so awarded or determined, 
 the excess shall be recoverable by distress, and on applica- 
 tion to any justice he shall issue his warrant accordingly. 
 Special jury 54. If either party desire any such question of disputed 
 to be sura- compensation as aforesaid to be tried before a special jury, 
 request of ^^^h question shall be so tried provided that notice of such 
 either party, desire, if coming from the other party, be given to the pro- 
 moters of the undertaking before they have issued their 
 warrant to the sheriff; and for that purpose the promoters 
 of the undertaking shall by their warrant to the sheriff re- 
 quire him to nominate a special jury for such trial ; and 
 thereupon the sheriff shall, as soon as conveniently may be 
 after the receipt by him of such warrant, summon both the 
 parties to appear before him, by themselves or their attor- 
 nies, at some convenient time and place appointed by him 
 for the purpose of nominating a special jury (not being less 
 than five or more than eight days from the service of such 
 summons) ; and at the place and time so appointed the 
 sheriff shall proceed to nominate and strike a special jury, 
 in the manner in which such juries shall be required by the 
 laws for the time being in force to be nominated or struck 
 by the proper officers of the superior courts, and the sheriff 
 shall appoint a day, not later than the eighth day after 
 striking of such jury, for the parties or their agents to ap- 
 pear before him to reduce the number of such jury, and 
 thereof shall give four days notice to the parties ; and on 
 the day so appointed the sheriff shall proceed to reduce the 
 said special jury to the number of twenty, in the manner 
 used and accustomed by the proper officers of the superior 
 courts. 
 Deficiency of 5.5. The special jury on such inquiry shall consist of 
 special jury- twelve of the said twenty who shall first appear on the 
 "'^"" names being called over, the parties having their lawful
 
 8 Vict. c. 1 8 — Lands Clauses. cxvii 
 
 challenges against any of the said jurymen ; and if a full 
 jury do not appear, or if after such challenges a full jury do 
 not remain, then, upon the application of either party, the 
 sheriff shall add to the list of such jury the names of any 
 other disinterested persons qualified to act as special or com- 
 mon jurymen, who shall not have been previously struck 
 off the aforesaid list, and who may then be attending the 
 court, or can speedily be procured, so as to complete such 
 jury, all parties having their lawful challenges against such 
 persons ; and the sheriff shall proceed to the trial and adju- 
 dication of the matters in question by such jury, and such 
 trial shall be attended in all respects with the like incidents 
 and consequences, and the like penalties shall be applicable^ 
 as hereinbefore provided in the case of a trial by common 
 jury. 
 
 56. Any other inquiry than that for the trial of which Other inqni- 
 such special jury may have been struck and reduced as ''''^'* ^^'^"'■'^ 
 aforesaid may be tried by such jury, provided the parties jury b'y'co'n- 
 thereto respectively shall give their consent to such trial. sent. 
 
 57. No juryman shall, without his consent, be summoned Jurymen not 
 or required to attend any such proceeding as aforesaid more l^ore than 
 than once in any year. once a year. 
 
 58. The purchase money or compensation to be paid for Compensa- 
 any lands to be purchased or taken by the promoters of the t'ont" absent 
 undertaking from any party who, by reason of absence from determined 
 the kingdom, is prevented from treating, or who cannot byasurveynr 
 after diligent inquiry be found, or who shall not appear at twoTJs'tces^ 
 the time appointed for the inquiry before the jury as here- 
 inbefore provided for, after due notice thereof, and the com- 
 pensation to be paid for any permanent injury to such 
 
 lands, shall be such as shall be determined by the valuation 
 of such able practical surveyor as two justices shall nomi- 
 nate for that purpose as hereinafter mentioned. 
 
 59. Upon application by the promoters of the undertaking Two justices 
 to two justices, and upon such proof as shall be satisfactory '" """"""te 
 to them that any such party is, by reason of absence from 
 
 the kingdom, prevented from treating, or cannot after dili- 
 gent inquiry be found, or that any such party failed to ap- 
 pear on such inquiry before a jury as aforesaid, after due 
 notice to him for that purpose, such justices shall, by writing 
 under their hands, nominate an able practical surveyor for 
 determining such compensation as aforesaid, and such sur- 
 veyor shall determine the same accordingly, and shall 
 annex to his valuation a declaration in writing subscribed 
 by him of the correctness thereof.
 
 cxviii Appendix — Statutes. 
 
 neciaration 60. Before such surveyor shall enter upon the duty of 
 thesurveyor^ making such valuation as aforesaid he shall, in the presence 
 of such justices, or one of them, make and subscribe the de- 
 claration following at the foot of such nomination : (that is 
 to say,) 
 
 ' I, A. B. do solemnly and sincerely declare, that I will 
 ' faithfully, impartially, and honestly, according to the 
 ' best of my skill and ability, execute the duty of 
 * making the valuation hereby referred to me. A. B. 
 ' Made and subscribed in the presence of 
 And if any surveyor shall corruptly make such declaration, 
 or having made such declaration shall wilfully act contrary 
 thereto, he shall be guilty of a misdemeanor. 
 Valuation, 61 . The said nomination and declaration shall be annexed 
 ^'^rf^" H*^ ^^ ^^^ valuation to be made by such surveyor, and shall be 
 the owner of preserved together therewith by the promoters of the under- 
 the lands on taking, and they shall at all times produce the said valuation 
 emanri. ^^^ Other documents, on demand, to the owner of the lands 
 comprised in such vahiation, and to all other parties inter- 
 ested therein. 
 Expenses to 62. All the expenses of and incident to every such valu- 
 be borne by ation shall be borne by the promoters of the undertaking, 
 promo ers. ^^^ j^^ estimating tlie purchase money or compensation 
 
 money «id ^ ^^ V^^^ ^i' ^^^^ promoters of the undertaking, in any of 
 compensa- the cases aforesaid, regard shall be had by the justices, arbi- 
 lion, how to trators, or surveyors, as the case may be, not only to the 
 value of the land to be purchased or taken by the promoters 
 of the luidertakins, but also to the damage, if any, to be 
 sustained by the owner of the lands by reason of the severing 
 of the lands taken from the other lands of such owner, or 
 otherwise injuriously affecting such other lands by the exer- 
 cise of the powers of this or the special act, or any act in- 
 corporated therewith. 
 Where com- 64. When the compensation payable in respect of any 
 pensation to lands, or any interest therein, shall have been ascertained 
 
 absent party ^ ^ valuation of a Surveyor, and deposited in the bank 
 has been de- .' . . .•''.,», , 
 
 termined by Under the provisions herein contained, by reason that the 
 a surveyor, owner of or party entitled to convey such lands or such 
 may'ha^ve the interest therein as aforesaid could not be found or was absent 
 -lime sub- from the kingdom, if such owner or party shall be dissatisfied 
 ar'bi't'^^^ron ^^"^^ ^nzV valuation it shall be lawful for him, before he shall 
 have applied to the Court of Chancery for payment or in- 
 vestment of the monies so deposited under the provisions 
 herein contained, by notice in writing to the promoters of the 
 undertaking, to require the question of such compensation
 
 8 Vict. c. 18 — Lands Clauses. cxix 
 
 to be submitted to arbitration, and thereupon the same shall 
 be so submitted accordingly, in the same manner as in other 
 cases of disputed compensation hereinbefore authorized or 
 required to be submitted to arbitration. 
 
 65. The question to be submitted to the arbitrators in the Question to 
 case last aforesaid shall be, whether the said sum so de- ^^ submitted 
 posited as aforesaid by the promoters of the undertaking trators. 
 was a sufficient sum, or whether any and what further sum 
 
 ought to be paid or deposited by them. 
 
 66. If the arbitrators shall award that a further sum If further 
 ought to be paid or deposited by the promoters of the under- ^"™ award- 
 taking, they shall pay or deposit, as the case may require, ter's to pay or 
 such further sum within fourteen days after the making of deposit same 
 such award, or in default thereof the same may be enforced teeVdays."' 
 by attachment, or recovered with costs by action or suit in 
 
 any of the superior courts. 
 
 67. If the arbitrators shall determine that the sum so Costs of the 
 deposited was sufficient, the costs of and incident to such "'■titration, 
 arbitration, to be determined by the arbitrators, shall be in 
 
 the discretion of the arbitrators, but if the arbitrators shall 
 determine that a further sum ought to be paid or deposited 
 by the promoters of the undertaking, all the costs of and 
 incident to the arbitration shall be boi-ne by the promoters 
 of the undertaking. 
 
 68. If any party shall be entitled to any compensation in To be settled 
 respect of any lands, or of any interest therein, which shall ^j^n'^rVurv 
 have been taken for or injuriously affected by the execution at the option 
 of the works, and for which the promoters of the under- of the party 
 taking shall not have made satisfaction under the provisions compenfa- 
 of this or the special act, or any act incorporated therewith, tion. 
 
 and if the compensation claimed in such case shall exceed 
 the sum of fifty pounds, such party may have the same 
 settled either by arbitration or by the verdict of a jury, as 
 he shall think fit ; and if such party desire to have the same 
 settled by arbitration, it shall be lawful for him to give notice 
 in writing to the promoters of the undertaking of such his 
 desire, stating in such notice the nature of the interest in 
 such lands in respect of which he claims compensation, and 
 the amount of the compensation so claimed therein ; and 
 unless the promoters of the undertaking be willing to pay 
 the amount of compensation so claimed, and shall enter 
 into a written agreement for that purpose within twenty-one 
 days after the receipt of any such notice from any party so 
 entitled, the same shall be settled by arbitration in the 
 manner herein provided; or if the party so entitled as afore- 
 said desire to have such question of compensation settled by
 
 cxx Appendix — Statutes. 
 
 a jury, it shall be lawful for him to give notice in writing of 
 such his desire to the promoters of the undertaking, stating 
 such particulars as aforesaid ; and unless the promoters of 
 the undertaking be willing to pay the amount of compen- 
 sation so claimed, and enter into a written agreement for 
 that purpose, they shall, within twenty-one days after the 
 receipt of such notice, issue their warrant to the sheriff to 
 summon a jury for settling the same in the manner herein 
 provided, and in default thereof they shall be liable to pay 
 to the party so entitled as aforesaid the amount of compen- 
 sation so claimed, and the same may be recovered by him, 
 with costs, by action in any of the superior courts, {in) 
 
 Application And with respect to the purchase money or compensation 
 
 of Compen- coming to parties having limited interests, or prevented 
 
 from treating, or not making title, be it enacted as follows: 
 
 Purchase 69. If the purchase money or compensation which shall 
 
 money pay- be payable in respect of any lands, or any interest therein, 
 
 ries^uDde"" purchased or taken by the promoters of the undertaking 
 
 disability from any corporation, tenant for life or in tail, married 
 
 """•'no^'t^^h ^'oni'in seised in her own right or entitled to dower, guar- 
 
 depositedin dian, committee of lunatic or idiot, trustee, executor or ad- 
 
 the bank. ministrator, or person having a partial or qualified interest 
 
 only in such lands, and not entitled to sell or convey the 
 
 same except under the provisions of this or the special act, 
 
 or the compensation to be paid for any permanent damage 
 
 to any such lands, amount to or exceed the sum of two 
 
 hundred pounds, the same shall be paid into the bank, in 
 
 the name and with the privity of the accountant-general of 
 
 the Court of Chancery in England if the same relate to 
 
 lands in England or Wales, or the accountant general of the 
 
 Coui-t of Exchequer in Ireland if the same relate to lands 
 
 in Ireland, to be placed to the account there of such ac- 
 
 countant-genei'al, ex parte the promoters of the undertaking 
 
 (desci-ibing them by their proper name), in the matter of 
 
 the special act (citing it), pursuant to the method prescribed 
 
 by any act for the time being in force for regulating monies 
 
 paid into the said courts ; and such monies shall remain so 
 
 {m) This clause would seem clearly to extend to a case of 
 injury done to land independently of any taking of the same; 
 see Treatise, p. 192, et seq. As to when lands may be consi- 
 dered to be injuriously alFected, see Treatise, p. 195. If the 
 sum claimed is under £50, the party's remedy would seem to 
 be by application to a justice. See ante, ss. 22, and 24.
 
 8 Vict. c. 18 — Lands Clauses. cxxi 
 
 deposited until the same be applied to some one or more of 
 
 the following purposes; (that is to say,) 
 
 In the purchase or redemption of the land tax, or the Application 
 discharge of any debt or incumbrance affecting the deposi'ted*. 
 land in respect of which such money shall have been 
 paid, or affecting other lands settled therewith to the 
 same or the like uses, trusts, or purposes ; or 
 In the purchase of other lands to be conveyed, limited, 
 and settled upon the like uses, trusts, and purposes, 
 and in the same manner, as the lands in respect of 
 which such money shall have been paid stood settled ; 
 or 
 If such money shall be paid in respect of any buildings 
 taken under the authority of this or the special act, or 
 injured by the proximity of the works, in removing or 
 replacing such buildings, or substituting others in their 
 stead, in such manner as the Court of Chancery shall 
 direct ; or 
 In payment to any party becoming absolutely entitled to 
 such money, (n) 
 
 70. Such money may be so applied as aforesaid upon an Order for 
 order of the Court of Chancery in England or the Court of ^{J^ inv'es" 
 Exchequer in Ireland, made on the petition of the party ment mean- 
 who would have been entitled to the rents and profits of the ^1^''^. 
 lands in respect of which such money shall have been de- 
 posited ; and until the money can be so applied it may, 
 
 upon the like order, be invested by the said accountant 
 general m the purchase of three per centum consolidated or 
 three per centum reduced bank annuities, or in government 
 or real securities, and the interest, dividends, and annual 
 proceeds thereof paid to the party who would for the time 
 being have been entitled to the rents and profits of the 
 lands. 
 
 71. If such jiurchase money or compensation shall not Sums from 
 amount to the sum of two hundred pounds, and shall exceed to bJde-" " 
 the sum of twenty pounds, the same shall either be paid posited or 
 into the bank, and applied in the manner hereinbefore pai'i "* "■"^- 
 directed with respect to sums amounting to or exceeding 
 
 two hundred pounds, or the same may lawfully be paid to 
 two trustees, to be non)inated by the parties entitled to the 
 rents or profits of the lands in respect whereof the same 
 shall be payable, such nomination to be signified by writing 
 under the hands of the party so entitled; and in case of the 
 
 (n) As to construction of provisions for application of monies 
 deposited in bank under particular railway acts, see Treatise, 
 pp. 223, 224. 
 
 F F
 
 cxxii Appendix — Statutes. 
 
 coverture, infancy, lunacy, or other incapacity of the parties 
 entitled to such monies, such nomination may lawfully be 
 made by their respective husbands, guardians, committees, 
 or trustees; but such last-mentioned application of the 
 monies shall not be made unless the promoters of the under- 
 taking approve thereof and of the trustees named for the 
 purpose ; and the money so paid to such trustees, and the 
 produce arising therefrom, shall be by such trustees applied 
 in the manner hereinbefore directed with respect to money 
 paid into the bank, but it shall not be necessary to obtain 
 any order of the court for that purpose. 
 Sumsnotex- 72. If such money shall not exceed the sum of twenty 
 ceeding 2o;. pounds, the same shall be paid to the parties entitled to the 
 parties. rents and profits of the lands in respect whereof the same 
 shall be payable, for their own use and benefit, or in case of 
 the coverture, infancy, idiotcy, lunacy, or other incapacity 
 of any such parties, then such money shall be paid, for their 
 use, to the respective husbands, guardians, committees, or 
 trustees of such persons. 
 All sums 73. All sums of money exceeding twenty pounds, which 
 
 payable un- may be payable by the promoters of the undertaking: in re- 
 ner contract -^ i *> •/ i o 
 
 with persons spect of the taking, using, or interfering with any lands 
 not absolute- under a contract or agreement with any person who shall 
 to be'cafd "°'' ^® entitled to dispose of such lands, or of the interest 
 into bank, therein contracted to be sold by him, absolutely for his own 
 benefit, shall be paid into the bank or to trustees in manner 
 aforesaid ; and it shall not be lawful for any contracting 
 party not entitled as aforesaid to retain to his own use anj'' 
 portion of the sums so agreed or contracted to be paid for 
 or in respect of the taking, using, or interfering with any 
 such lands, or in lieu of bridges, tunnels, or other accom- 
 modation works, or for assenting to or not opposing the 
 passing of the bill authorizing the taking of such lands, but 
 all such monies shall be deemed to have been contracted to 
 be paid for and on account of the several parties interested 
 in such lands, as well in possession as in remainder, rever- 
 sion, or expectancy : provided always, that it shall be in the 
 discretion of the Court of Chancery in England or the Court 
 of Exchequer in Ireland, or the said trustees, as the case 
 may be, to allot to any tenant for life, or for any other par- 
 tial or qualified estate, for his own use, a portion of the sum 
 so paid into the bank, or to such trustees as aforesaid, as 
 compensation for any injury, inconvenience, or annoyance 
 which he may be considered to sustain, independently of 
 the actual value of the lands to be taken, and of the damage 
 occasioned to the lands held therewith, by reason of the 
 taking of such lands and the making of the works. 
 
 I
 
 8 Vict. c. IS — Lands Clauses. cxxiii 
 
 74. Where any purchase money or compensation paid Court of 
 into the hank under tht provisions of this or the special act i„ay"direct 
 shall have been paid in respect of any lease for a life or lives application 
 or years, or for a life or lives and ye.ars, or any estate in °^ money in 
 lands less than the whole fee simple thereof, or of any re- leases or re- 
 version dependant on any such lease or estate, it shall be versions as 
 lawful for the Court of Chancery in England or the Court [ijfni^ust. 
 of Exchequer in Ireland, on the petition of any party in- 
 terested in such money, to order that the same shall be 
 
 laid out, invested, accumulated, and paid in such manner as 
 the said court may consider will give to the parties interested 
 in such money the same benefit therefrom as they might 
 lawfully have had from the lease, estate, or reversion in 
 respect of which such money shall have been paid, or as 
 near thereto as may be. 
 
 75. Upon deposit in the bank in manner hereinbefore Upon depo- 
 
 provided of the purchase money or compensation agreed or ^Lde' the 
 
 awarded to be paid in respect of any lands purchased or owners of 
 
 taken by the promoters of the undertaking under the provi- the lands to 
 c .-,■ '■ ., •! . ° . ■ L J convey, or in 
 
 sions 01 this or the special act, or any act incorporated default the 
 
 therewith, the owner of such lands, including in such term lands to vest 
 all parties by this act enabled to sell or convey lands, shall, J^oters^fthe 
 when required so to do by the promoters of the undertaking, undertaking 
 duly convey such lands to the promoters of the undertaking, "po" a deed 
 or as they shall direct ; and in default thereof, or if he fail executedf 
 to adduce a good title to such lands to their satisfaction, it 
 shall be lawful for the promoters of the undertaking, if they 
 think fit, to execute a deed poll under their common seal if 
 they be a corjioration, or if they be not a corporation under 
 the hands and seals of the promoters, or any two of them, 
 containing a description of the lands in respect of which 
 such default shall he made, and reciting the purchase or 
 taking thereof by the promoters of the undertaking, and the 
 names of the parties from whom the same were purchased 
 or taken, and the deposit made in respect thereof, and de- 
 claring the fact of such default having been made, and 
 such deed poll shall be stamped with the stamp duty which 
 would have been payable upon a conveyance to the pro- 
 moters of the und'-rtaking of the lands described therein ; 
 and thereupon all the estate and interest in such lands of or 
 capable of being sold and conveyed by the party between 
 whom and the promoters of the undertaking such agreement 
 shall have been come to, or as between whom and the pro- 
 moters of the undertaking such purchase money or compen- 
 sation shall have been determined by a jury, or by arbitra- 
 tors, or by a surveyor appointed by two justices as herein 
 FF 2
 
 cxxiv Appendix — Statutes. 
 
 provided, and shall have been deposited as aforesaid, shall 
 vest absolutely in the promoters of t^e undertaking, and as 
 against such parties, and all parties on behalf of v.hom the}' 
 are hereinbefore enabled to sell and convey, the promoters 
 of the undertaking shall be entitled to immediate possession 
 of such lands, (o) 
 Where par. 76. If the owner of any such lands purchased or taken by 
 ties refuse to the promoters of the undertaking, or of any interest therein, 
 rio°not'show "^^ tender of the purchase money or compensation either 
 title, or can- agreed or awarded to be paid in respect thereof, refuse to 
 not be found, accept the same, or neglect or fail to make out a title to 
 moiieTto be*^ such lands, or to the interest therein claimed by him, to the 
 deposited, satisfaction of the promoters of the undertaking, or if he re- 
 fuse to convey or release such lands as directed by the 
 promoters of the undertaking, or if any such owner be ab- 
 sent from the kingdom, or cannot after diligent inquiry be 
 found, or fail to appear on the inquiry beforea jury, as herein 
 provided for, it shall be lawful for the promoters of the un- 
 dertaking to deposit the purchase money or compensation 
 payable in respect of such lands, oi any interest therein, in 
 the bank, in the name and with the privity of the accountant- 
 general of the Court of Chancery in England or the Court 
 of Exchequer in Ireland, to be placed, except in the cases 
 herein otherwise provided for, to his account there, to the 
 credit of the parties interested in such lands (describing them 
 so far as the promoters of the undertaking can do), subject 
 to the control and disposition of the said court, (p) 
 Upon depo- '^T'. Upon any such deposit of money as last aforesaid 
 sit being being made the cashier of the bank shall give to the pro- 
 "e t fo^be rnoters of the undertaking, or to the party paying in such 
 (jiven, and money by their direction, a receipt for such mone}-, specify- 
 the lands to ingtherein for whatandfor whose use(described as aforesaid) 
 deed po°r ^ the same shall have been received, and in respect of what 
 being ex- purchase the same shall have been paid in ; and it shall be 
 ecuted. lawful for the promoters of the undertaking, if they think fit, 
 
 to execute a deed poll under their common seal if they be a 
 corporation, or if they l)e not a corporation under the hands 
 and seals of the said promoters, or any two of them, con- 
 
 (o) As to the effect of the payment, &c., of the compensation 
 in operating' so as to dispense with a conveyance, see ante, 
 Treat, p. 213; and also as to its effect in binding the property, 
 see ante, Treat, p. 218. 
 
 (p) As to what is a failure to make out a title &c., so as to jus- 
 tify the company in paying' money into court under particular 
 railway acts, see Treatise, p. 215, et seq.
 
 8 Vict. c. 18 — Lands Clauses. cxxv 
 
 taming a description of the lands in respect whereof such 
 deposit shall have been made, and declaring the circum- 
 stances under which the names of the parties to whose 
 credit such deposit shall have been made, and such deed 
 poll shall be stamped with the stamp duty which would have 
 been payable upon a conveyance to the promoters of the 
 undertaking of the lands described therein ; and thereupon 
 all the estate and interest in such lands of the parties for 
 whose use and in reS|>ect whereof such purchase money or 
 compensation shall have been deposited shall vest absolutely 
 in the promoters of the undertaking, and as against such 
 parties they shall be entitled to immediate possession of such 
 lands. (/•) 
 
 78. Upon the application by petition of any party making Application 
 claim to the money so deposited as last aforesaid, or any ^eposUed^ ^° 
 part thereof, or to the lands in respect whereof the same 
 
 shall have been so deposited, or any part of such lands, or 
 any interest in the same, tlie said Court of Chancery in 
 England or the Court of Exchequer in Ireland may, in a 
 summary way, as to such court shall seem fit, order such 
 money to be laid out or invested in the public funds, or 
 may order distribution thei'eof, or payment of the dividends 
 thereof, according to the respective estates, titles, or interests 
 of the parties making claim to such money or lauds, or any 
 part thereof, and may make such other order in the premises 
 as to such court shall seem fit. (s) 
 
 79. If any question arise respecting the title to the lands Partyinpos- 
 in respect whereof such monies shall have been so paid or session to be 
 
 . ... u66niGCl tnc 
 
 deposited as aforesaid, the parties respectively iti possession owner, 
 of such lands, as being the owners thereof, or in receipt of 
 the rents of such lands, as being entitled thereto at the time 
 of such lands being purchased or taken, shall be deemed to 
 have been lawfully entitled to such lands, until the contrary 
 be shown to the satisfaction of the court ; and unless the 
 contrary be shown as aforesaid, the parties so in possession, 
 and all parties claiming under them, or consistently with 
 their possession, shall be deemed entitled to the money so 
 deposited, and to the dividends or interest of the annuities 
 or securities purchased therewith, and the same shall be 
 paid and applied accordingly, (s) 
 
 (r) See n. (o), ante. 
 
 (s) Semble, party in possession entitled, under this and the 
 following clause, to have money paid out of court on his own 
 affidavit of title, where no adverse claim is preferred by any 
 one else. See Treatise, p. 223.
 
 CXXVl 
 
 Costs in 
 cases of mo- 
 ney depo- 
 sited. 
 
 Convey, 
 anees. 
 
 Form of 
 convey- 
 EDces. 
 
 Appendix — Statutes. 
 
 80. In all cases of monies deposited in the bank under 
 the provisions of this or the special act, or any act incor- 
 porated therewith, except where such monies shall have 
 been so deposited by reason of the wilful refusal of any 
 party entitled thereto to receive the same, or to convey or 
 release the lands in respect whereof the same shall be pay- 
 able, or by reason of the wilful neglect of any party to make 
 out a good title to the land required, it shall be lawful for 
 the Court of Chancery in England or the Court of Ex- 
 chequer in Ireland to order the costs of the following mat- 
 ters, including therein aU reasonable charges and expenses 
 incident thereto, to be paid by the promoters of the under- 
 taking ; (that is to say,) the costs of the purchase or taking 
 of the lands, or which shall have been incurred in conse- 
 quence thereof, other than such costs as are herein other- 
 wise provided for, and the cost of the investment of such 
 monies in government or real securities, and of the rein- 
 vestment thereof in the purchase of other lands, and also 
 the costs of obtaining the proper orders for any of the pur- 
 poses aforesaid, and of the orders for the payment of the 
 dividends and interest of the securities upon which such 
 monies shall be invested, and for the payment out of court 
 of the principal of such monies, or of the securities whereon 
 the same shall be invested, and of all proceedings relating 
 thereto, except such as are occasioned by litigation between 
 adverse claimants; provided always, that the costs of one 
 application only for reinvestment in land shall be allowed, 
 unless it shall appear to the Court of Chancery in England 
 or the Court of Exchequer in Ireland that it is for the 
 benefit of the parties interested in the said monies that the 
 same should be invested in the purchase of lands, in differ- 
 ent sums and at different times, in which case it shall be 
 lawful for the court, if it think fit, to order the costs of any 
 such investments to be paid by the promoters of the under- 
 taking, (u) 
 
 And with respect to the conveyances of lands, be it 
 enacted as follows : 
 
 81. Conveyances of lands to be purchased under the 
 provisions of this or the special act, or any act incorporated 
 therewith, may be according to the forms in the schedules 
 
 (u) As to questions of costs in cases of money deposited in 
 the bank under prior acts, see Treatise, p. 228, et seq Quare, 
 whether under this clause costs of payment of the dividends 
 can be claimed ; see Treatise, p. 230. As to what costs have 
 been held to be costs of reinvestment, see Treatise, p. 232.
 
 8 Vict. c. 18 — Lands Clauses. cxxvii 
 
 (A.) and (B.) respectively to this act annexed, or as near 
 thereto as the circumstances of the case will admit, or by 
 deed in any other form which the promoters of the under- 
 taking may think fit ; and all conveyances made according 
 to the forms in the said schedules, or as near thereto as the 
 circumstances of the case will admit, shall be effectual to 
 vest the lands thereby conveyed in the promoters of the un- 
 dertaking, and shall operate to merge all terms of years 
 attendant by express declaration, or by construction of law, 
 on the estate or interest so thereby conveyed, and to bar 
 and to destroy all such estates tail, and all other estates, 
 rights, titles, remainders, reversions, limitations, trusts and 
 interests whatsoever, of and in the lands comprised in such 
 conveyances which shall have been purchased or compen- 
 sated for by the consideration therein mentioned; but 
 although terms of years be thereby merged, they shall in 
 equity afford the same protection as if they had been kept 
 on foot, and assigned to a trustee for the promoters of the 
 undertaking to attend the reversion and inheritance. 
 
 82. The costs of all such conveyances shall be borne by Costs of cob 
 the promoters of the undertaking, and such costs sball in- 
 clude all charges and expenses incurred, on the part as well 
 
 of the seller as of the purchaser, of all conveyances and 
 assurances of any such lands, and of any outstanding terms 
 or interests therein, and of deducing, evidencing, and verify- 
 ing the title to such lands, terms, or interests, and of making 
 out and furnishing such abstracts and attested copies as the 
 promoters of the undertaking may require, and all other 
 reasonable expenses incident to the investigation, deduction, 
 and verification of such title, (x) 
 
 83. If the promoters of the undertaking and the party Taxation of 
 entitled to any such costs shall not agree as to the amount costs of con- 
 thereof, such costs shall be taxed by one of the taxing masters ^^i''" *^' 
 of the Court of Chancery, or by a master in Chancery in Ire- 
 land, upon an order of the same court, to be obtained upon 
 petition in a summary way by either of the parties ; and the 
 promoters of the undertaking shall pay what the said master 
 
 shall certify to be due in respect of such costs to the party 
 entitled thereto, or in default thereof the same may be 
 recovered in the same way as any other costs payable under 
 an order of the said court, or the same may be recovered by 
 distress in the inanner hereinbefore provided in other cases 
 of costs; and the expense of taxing such costs shall be borne 
 by the promoters of the imdertaking, unless upon such taxa- 
 
 (x) See Treatise, p. 226.
 
 Jppendix — Statutes. ^ 
 
 tion one-sixth part of the amount of such costs shall be dis- 
 allowed, in which case the costs of such taxation shall be 
 borne by the party whose costs shall be so taxed, and the 
 amount thereof shall be ascertained by the said master, and 
 deducted by him accordingly in his certificate of such tax- 
 ation, (j/) 
 
 E7itry on And with respect to the entry (z) upon lands by the pro- 
 Lands. moters of the undertaking, be it enacted as follows : 
 Payment of ^^' "^^^ promoters of the undertaking shall not, except 
 price to be by consent of the owners and occupiers, enter upon any 
 made previ- ]ands which shall be required to be purchased or perma- 
 except to nently used for the pui"poses and under the powers of this 
 survey, &c. or the special act, until they shall either have paid to every 
 party having any interest in such lands, or deposited in the 
 bank, in the manner herein mentioned, the purchase money 
 or compensation agreed or awarded to be paid to such parties 
 respectively for their respective interests therein : provided 
 always, that for the purpose merely of surveying and taking 
 levels of such lands, and of probing or boring to ascertain 
 the nature of the soil, and of setting out the line of the 
 works, it shall be lawful for the promoters of the under- 
 taking, after giving not less than three nor more than four- 
 teen days notice to the owners or occupiers thereof, to enter 
 upon such lands without previous consent, making compen- 
 sation for any damage thereby occasioned to the owners or 
 occupiers thereof 
 Promoters to 85. Provided also, that if the promoters of the under- 
 be allowed to t^]jijjg gi^aU ]jg desirous of entering upon and using any 
 fands before such lands before an agreement shall have been come to 
 purchase, on or an award made, or verdict given for the purchase money 
 "o^sit T 'ivav °^ compensation to be paid by them in respect of such lands, 
 of security ' it shall be lawful for the promoters of the undertaking to 
 and giving deposit in the bank by way of security, as hereinafter men- 
 tioned, either the amount of purchase money or compensa- 
 tion claimed by any party interested in or entitled to sell 
 and convey such lands, and who shall not consent to such 
 entry, or such a sum as shall, by a surveyor appointed by 
 two justices in the manner hereinbefore provided in the case 
 of parties who cannot be found, be determined to be the 
 value of such lands, or of the interest therein which such 
 party is entitled to or enabled to sell and conyey, and also 
 
 {y) As to effect of special agreement on subject of taxation 
 of costs, see Treat, ante, p. 225, 
 
 (s) See as to effect of entry before payment of compensa- 
 tion, &c., Treat, ante, p. 214.
 
 8 Vict. c. 18 — Lands Clauses. cxxix 
 
 to give to such party a bond, under the common seal of the 
 promoters if they be a corporation, or if they be not a cor- 
 poration under the hands and seals of the said promoters, 
 or any two of them, with two sufficient sureties to be ap- 
 proved of by two justices in case the parties differ, in a 
 penal sum equal to the sum so to be deposited, conditioned 
 for payment to such party, or for deposit in the bank for the 
 benefit of the parties interested in such lands, as the case 
 may require, under the provisions herein contained, of all 
 such purchase money or compensation, as may in manner 
 hereinbefore provided be determined to be payable by the 
 promoters of the undertaking in respect of the lands so en- 
 tered upon, together with interest thereon, at the rate of 
 five pounds per centum per annum, from the time of enter- 
 ing on such lands, until such purchase money or compen- 
 sation shall be paid to such party, or deposited in the bank 
 for the benefit of the parties interested in such lands, under 
 the provisions herein contained; and upon such deposit by 
 way of security being made as aforesaid, and such bond 
 being delivered or tendered to such non-consenting party as 
 aforesaid, it shall be lawful for the promoters of the under- 
 taking to enter upon and use such lands, without having 
 first paid or deposited the purchase money or compensation 
 in other cases required to be paid or deposited by tlieni 
 before entering upon any lands to be taken by them under 
 the provisions of this or the special act. 
 
 86. The money so to be deposited as last aforesaid shall Upon depo- 
 
 be paid into the bank in the name and with the privity of ^'* V''''"^u- 
 1 1^1/-. !• /^l ■'-'11 oiaue cashier 
 
 the accountant-general ot the Court oi Chancery m i^ngland to give re- 
 
 or the court of Exchequer in Ireland, to be placed to his ceipt. 
 
 account there to the credit of the parties interested in or 
 
 entitled to sell and convey the lands so to be entered upon, 
 
 and who shall not have consented to such entry, subject to 
 
 the control and disposition of the said court ; and upon such 
 
 deposit being made, the cashier of the bank shall give to 
 
 the promoters of the undertaking, or to the party paying in 
 
 such money by their direction, a receipt for such money, 
 
 specifying therein for what purpose and to whose credit the 
 
 same shall have been paid in. 
 
 87. 'i'lie money so deposited as last aforesaid shall remain deposit to 
 
 in the bank, by way of security to the parties whose lands security^ ami 
 
 shall so have been entered upon for the performance of the to be applied 
 
 condition of the bond to be given by the promoters of the "P'l-r "'^ 
 
 . . ^ o ■•^111 direction of 
 
 undertakmg, asherenibeiore mentioned, and tlie same may, the court. 
 
 on the application by petition of the promoters of the under- 
 taking, be ordered to be invested in Bank Annuities or Go-
 
 cxxx Appendix — Statutes. 
 
 vernment securities, and accumulated; and upon the con- 
 dition of such bond being fully performed it shall be lawful 
 for the Court of Chancery in England, or the Coui-t of Ex- 
 chequer in Ireland, upon a like application, to order the 
 money so deposited, or the funds in which the same shall 
 have been invested, together with the accumulation thereof, 
 to be repaid or transferred to the promoters of the under- 
 taking, or if such condition shall not be fully performed, it 
 shall be lawful for the said court to order the same to be ap- 
 plied in such manner as it shall think fit for the benefit of 
 the parties for whose security the same shall so have been 
 deposited. 
 The com- 88. If at any time the company be unable, by reason of 
 
 Dav^the^de- ^^^ closing of the office of the acccountant-general of the 
 posit money Court of Chancery in England, or the Court of Exchequer 
 into the bank in Ireland, to obtain his authority in respect of the payment 
 cnliyauring 0^ ^'^J sum of money so authorized to be deposited in the 
 the time that bank by way of security as aforesaid, it shall be lawful for 
 th^ °a*'"cou°t '^^ company topayinto the bank to the credit of such party 
 ant general Or matter as the case may require (subject nevertheless to 
 is closed. being dealt with as hereinafter provided, and not otherwise), 
 such sum of money as the promoters of the undertaking 
 shall, by some writing signed by their secretary or solicitors 
 for the time being, addressed to the governor and company 
 of the bank in that behalf, request, and upon any such pay- 
 ment being made the cashier of the bank shall give a certi- 
 ficate thereof; and in every such case, \vithin ten da3's after 
 the reopening of the said accountant-general's office, the 
 solicitor for the promoters of the undertaking shall there 
 bespeak the direction for the payment of such sum into the 
 name of the accountant-general, and upon production of 
 such direction at the Bank of England the money so pre- 
 viously paid in shall be placed to the credit of the said 
 accountant-general accordingly, and the receipt for the said 
 payment be given to the party making the same in the usual 
 way for the purpose of being filed at the Report Office. 
 Penalty on gg, Jf the promoters of the undertaking or any of their 
 tersof the* Contractors shall, except as aforesaid, wilfully enter(a) upon 
 undertaking and take possession of anj* lands which shall be required to 
 upo"'iifi)ds ^^ purchased or permanently used for the purposes of the 
 without eon- special act, without such consent as aforesaid, or without 
 sent before having made such payment for the benefit of the parties in- 
 the^pnrchase terested in the lands, or such deposit by way of security as 
 money. 
 
 (a) As to the remedy in equity in such case, see Treatise, 
 ante, p. 214. 
 
 J
 
 8 Vict. c. 1 8 — Lands Clauses. cxxxl 
 
 aforesaid, the promoters of the undertaking shall forfeit to 
 the party in possession of such lands the sum often pounds, 
 over and above the amount of any damage done to such 
 lands by reason of such entry and taking possession as afore- 
 said, such penalty and damage respectively to be recovered 
 before two justices; and if the promoters of the undertaking 
 or their contractors shall, after conviction in such penalty as 
 afoi-esaid, continue in unlawful possession of any such lands, 
 the promoters of the undertaking shall be liable to forfeit 
 the sum of twenty-five pounds for every day they or their 
 contractors shall so remain in possession as aforesaid, such 
 penalty to be recoverable by the party in possession of such 
 lands, with costs, by action in any of the superior courts : 
 provided always, that nothing herein contained shall be held 
 to subject the promoters of the undertaking to tlie payment of 
 any such penalties as aforesaid, if they shall bona fide and 
 without collusion have paid the compensation agreed or 
 awarded to be paid in respect of the said lands to any person 
 whom the promoters of the undertaking may have reason- 
 ably believed to be entitled thereto, or shall have deposited 
 the same in the bank for the benefit of the parties interested 
 in the lands, or made such deposit by wa}' of security in 
 respect thereof as hereinbefore mentioned, although such 
 person may not have been legally entitled thereto. 
 
 90. On the trial of any action for any such penalty as Decision oi' 
 aforesaid the decision of the justices under the provision J^s'i'^s* not 
 hereinbefore contained shall not be held conclusive as to the as to the'^^ 
 right of entry on any such lands by the promoters of the right of the 
 undertaking. _ promoters. 
 
 91. If in any case in which, according to the provisions Proceedings 
 of this or the special act, or any act incorporated therewith, j." ^^''^ of le- 
 the promoters of the undertaking are authorized to enter verpo°3gg^ '" 
 upon and take possession of any lands required for the pur- sionofiamis. 
 poses of the undertaking, the owner or occupier of any such 
 
 lands or any other person refuse to give up the possession 
 thereof, or hinder the promoters of the undertaking from 
 entering upon or taking possession of the same, it shall be 
 lawful for tlie promoters of the undertaking to issue their 
 warrant to the slierifF to deliver possession of the same to 
 the person appointed in such warrant to receive the same, 
 and upon the receipt of such warrant the sheriff' shall deliver 
 possession of any such lands accordingly, and the costs accru- 
 ing by reason of the issuing and execution of such warrant, to 
 be settled by the sheriff", shall be paid by the person refusing 
 to give possession, and the amount of such costs shall be
 
 cxxxii Appendix — Statutes. 
 
 deducted and retained by the promoters of the undertaking 
 from the compensation, if any, then payable by them to such 
 party, or if no such compensation be payable to such party, 
 or if the same be less than the amount of such costs, then 
 such costs, or the excess thereof beyond such compensation, 
 if not paid on demand, sliall be levied by distress, and upon 
 application to any justice for that purpose he shall issue his 
 warrant accordingly. 
 Parties not 99. And be it enacted, that no party shall at any time 
 quired to sell ^^^ required to sell or convey to the promoters of the under- 
 partof a taking a part only of any house or other building or manu- 
 factory, if such party be willing and able to sell and convey 
 the whole thereof {b) 
 
 house. 
 
 Intersected And with rcspect to small portions of intersected land, be 
 
 it enacted as follows: 
 Owners of 93. If any lands not being situate in a town or built upon 
 frl!i7n,^ll!f„ shall be so cut through and divided by the works as to leave, 
 sist on bale, either on both sides or on one side thereof, a less quantity 
 of land than half a statute acre, and if the owner of such 
 small parcel of land require the promoters of the undertaking 
 to purchase the same along with the other land required for 
 the purjtoses of the special act, the promoters of the under- 
 taking shall purchase the same accordingly, unless the owner 
 thereof have other land adjoining to that so left into which 
 the same can be thrown, so as to be conveniently occupied 
 therewith ; and if such owner have any other land so ad- 
 joining, the promoters of the undertaking shall, if so required 
 by the owner, at their own expense, throw the piece of land 
 so left into such adjoining land by removing the fences and 
 levelling the sites thereof, and by soiling the same in a suffi- 
 cient and workmanlike manner. 
 Promoters 94. If any such land shall be so cut through and divided 
 taking'ma'y" ^^ ^° leave on either side of the works apiece of land of less 
 insist on extent than half a statute acre, or of less value than the ex- 
 purchase pense of making a bridge, culvert, or such other commuiii- 
 pense of' cation between the land so divided as the promoters of the 
 hridges, 5cc. undertaking arc, under the provisions of this or the special 
 value* *' ^ act, or any act incorporated therewith, compellable to make, 
 and if the owner of such lands have not other lands adjoin- 
 ing such piece of land, and require the promoters of the un- 
 dertaking to make such communication, then the promoters 
 of the undertaking may require such owner to sell to them 
 
 (A) See as to interpretation of analogous provisions in piior 
 acts, Treatise, pp. J 12, 113.
 
 S Vict. c. 18 — Lands Clauses. cxxxiii 
 
 such piece of land, and any dispute as to the vaUie of such 
 piece of land, or as to what would be the expense of making 
 such communication, shall be ascertained as herein provided 
 for cases of disputed compensation ; and on the occasion of 
 ascertaining the value of the land required to be taken for 
 the purposes of the works, the jury or the arbitrators, as the 
 case may be, shall, if required by either party, ascertain by 
 their verdict or award the value of any such severed piece 
 of land, and also what would be the expense of making such 
 connnunication. 
 
 And with respect to copyhold lands, be it enacted as fol- Copyholds. 
 lows: 
 
 95. Every conveyance to the promoters of the imdertak- Conveyance 
 ing of any lands which shall be of copyhold or customary of copyhold 
 tenure, or of the nature thereof, shall be entered on the rolls enroUed. 
 of the manor of which the same shall be held or parcel; and 
 
 on payment to the steward of such manor of such fees as 
 would be due to him on the surrender of the same lands to 
 the use of a purchaser thereof he shall make such enrol- 
 ment; and every such conveyance, when so enrolled, shall 
 have the like effect, in respect of such copyhold or customary 
 lands, as if the same had been of freehold tenure, neverthe- 
 less, until such lands shall have been enfranchised by virtue 
 of the powers hereinafter contained, they shall continue 
 subject to the same fines, rents, heriots, and services as were 
 theretofore payable and of right accustomed. 
 
 96. Within three months after the enrolment of the con- Copyhold 
 veyance of any such copyhold or customary lands, or within '^".''* '" 'j^ 
 one month after tlie promoters of the undertaking shall ed. '^ 
 enter upon and make use of the same for the purposes of 
 
 the works, whichever shall first happen, or if more than one 
 parcel of such lands holden of the same manor shall have 
 been taken by them, then within one month after the last of 
 such parcels shall have been so taken or entered on by 
 them, the promoters of the undertaking shall procure the 
 whole of the lands holden of such manor so taken by them 
 to be enfranchised, and for that purpose shall apply to the 
 lord of the manor whereof sucli lands are holden to enfran- 
 chise the same, and shall pay to liim such compensation in 
 respect thereof as shall be agreed u])on between them and 
 him, and if tlie parties fail to agree respecting the amount of 
 the compensation to be paid for such enfranchisement, the 
 same shall be determined as in otiier cases of disputed com- 
 pensation; and in estimating such compensation the loss in
 
 CXXXIV 
 
 Appendix — Statutes. 
 
 Lord of the 
 manor to 
 enfranchise 
 
 respect of the fines, heriots, and other services payable on 
 death, descent, or ahenation, or any other matters which 
 would be lost by the vesting of such copyhold or customary 
 lands in the promoters of the undertaking, or by the enfran- 
 chisement of the same, shall be allowed for. 
 
 97. Upon payment or tender of the compensation so 
 agreed upon or determined, or on deposit thereof in the 
 
 on payment bank in any of the cases hereinbefore in that behalf pro- 
 of oompen- vided, the lord of the manor whereof such copyhold or cus- 
 sation. tomary lands shall be holden shall enfranchise such lands, 
 
 and the lands so enfranchised shall for ever thereafter be 
 held in free and common socage ; and in default of such 
 enfranchisement by the lord of the mano, or if he fail to 
 adduce a good title thereto to the satisfation of the pro- 
 moters of the undertaking, it shall be lawful for them, if 
 they think fit, to execute a deed poll, duly stamped, in the 
 manner hereinbefore provided in the case of the purchase of 
 lands by them, and thereupon the lands in respect of the 
 enfi-anchisement whereof such compensation shall have been 
 deposited as aforesaid shall be deemed tobe enfranchised, 
 and shall be for ever thereafter held in free and common 
 socage. 
 
 98. If any such copyhold or customary lands be subject 
 to any customarj' or other rent, and part only of the land 
 subject to any such rent be required to be taken for the 
 purposes of the special act, the apportionment of such rent 
 \i\ix\ be settled by agreement between the owner of the lands 
 and the lord of the manor on the one part, and the pro- 
 moters of the undertaking on the other part, and if such 
 apportionment be not so settled by agreement, then the 
 same shall be settled by two justices; and the enfranchise- 
 ment of any copyhold or customary lands taken by Wrtue 
 of this or the special act, or the apportionment of such 
 rents, shall not affect in other respects any custom by or 
 under which any such copyhold or customary lands not 
 taken for such purposes shall be held; and if any of the 
 lands so required be released from any portion of the rents 
 to which they were subject jointly with any other lands, 
 such last-mentioned lands shall be chai-ged with the remain- 
 der only of such rents; and with reference to any such 
 apportioned rents, the lord of the manor shall have all the 
 same rights and remedies over the lands to which such ap- 
 portioned rent shall have been assigned or attributed as he 
 had previously over the whole of the lands subject to such 
 rents for the whole of such rents. 
 
 Apportion- 
 ment of 
 copyhold 
 rents.
 
 8 Vict. c. 18 — Land)! Clauses. cxxxv 
 
 And with respect to any such lands being common or Common 
 waste (c) lands, be it enacted as follows: Lands. 
 
 99. The compensation in respect of the riglit in the soil Compensa- 
 
 of any lands svibiect to any rights of common shall be p.iid "onforcom- 
 
 i-^ii^-i'' -1 1111 x-zi 1 , ,1 mon lands, 
 
 to the lord of the manor, in case he shall be entitled to the where held 
 
 same, or to such party, other than the commoners, as sliall of a manor, 
 be entitled to such right in the soil ; and the compensation be pa^^)^ '" 
 in respect of all other commonable and other rights in or 
 over such lands, including therein any commonable or other 
 rights to wliich the lord of the manor may be entitled, other 
 than his right in the soil of such lands, shall be determined 
 and paid and applied in manner hereinafter provided with 
 respect to common lands the right in the soil of which shall 
 belong to the commoners; and upon payment or deposit in 
 the bank of the compensation so determined, all such com- 
 monable and other rights shall cease and be extinguished, 
 
 100. Upon payment or tender to the lord of the manor, Lord of the 
 or such other party as aforesaid, of the compensation which manor, &c. 
 shall have been agreed upon or determined in respect of the Jhe'^cro'^^ '° 
 right in the soil of any such lands, or on deposit thereof in moters of 
 the bank in any of the cases hereinbefore in that behalf pro- the under- 
 vided, such lord of the manor, or such other party as afore- receiving" 
 said, shall convey such lands to the promoters of the under- compensa- 
 taking, and such conveyance shall have the effect of vesting ; Jj^er^" t '^'* 
 such lands in the promoters of the undertaking, in like 
 manner as if such lord of the manor, or such other party as 
 aforesaid, had been seised in fee simple of such lands at the 
 
 time of executing such conveyance; and in default ofsucli 
 conveyance it shall be lawful for the promoters of the under- 
 taking, if they think fit, to execute a deed poll duly stamped, 
 in the manner hereinbefore provided in the case of the pur- 
 chase of lands by them, and thereupon the lands in respect 
 whereof such last-mentioned compensation shall have been 
 deposited as aforesaid, shall vest absolutely in the promoters 
 of the undertaking, and they shall be entitled to immediate 
 possession thereof, subject nevertheless to the commonable 
 and other rights theretofore affecting the same, until such 
 rights shall have been extinguished by payment or deposit 
 of the compensation for the same in manner hereinafter 
 provided. 
 
 301. The compensation to be paid with respect to any Compensa- 
 such lands, being common lands, or in the nature thereof, tionforcom- 
 the right to the soil of which shall belong to the commoners, wherein"/ 
 as well as the compensation to be paid for the commonable held of a 
 
 (c) See Calor v. Crot/don Canal Company, 4 Y. & Coll. 405.
 
 A meeting of 
 the parties 
 interested to 
 
 xxxvi Appendix — Statutes. 
 
 ^'^^orho'w and other rights in or over common lands, the right in tlie 
 tained" ' ^°^^ wliereof shall not belong to the commoners, other than 
 the compensation to the lord of the manor, or other party 
 entitled to the soil thereof, in respect of his right in the soil 
 thereof, shall be determined by agreement between the pro- 
 moters of the undertaking and a committee of the parties 
 entitled to commonable or other rights in such lands, to be 
 appointed as next hereinafter mentioned. 
 
 102. It shall be lawful for the promoters of the under- 
 taking to convene a meeting of the parties entitled to com- 
 be convened, monable or other rights over or in such lands to be held at 
 
 someconvenientplace in the neighbourhood of the lands, for 
 the purpose of their appointing a committee to treat with 
 the promoters of the undertaking for the compensation to be 
 paid for the extinction of such commonable or other rights ; 
 and every such meeting shall be called by public advertise- 
 ment, to be inserted once at least in two consecutive weeks 
 in some newspaper circulating in the county or in the re- 
 spective counties, and in the neighbourhood in which such 
 lands shall be situate, the last of such insertions being not 
 more than fourteen nor less than seven days prior to any 
 such meeting ; and notice of such meeting shall also, not 
 let-s than seven days previous to the holding thereof, be 
 atiixed upon the door of the parish church where such meet- 
 ing is intended to be held, or if there be no such church, 
 some other place in the neighbourhood to which notices are 
 usually affixed; and if such lands be parcel or holden of a 
 manor, a like notice shall be given to the lord of such 
 manor. 
 
 103. It shall be lawful for the meeting so called to ap- 
 point a committee, not exceeding five in number, of the 
 parties entitled to any such rights; and at such meeting 
 the decision of the majority of the persons entitled to com- 
 monable rights present shall bind the minority and all the 
 absent parties. 
 
 Committee 104. It shall be lawful for the committee so chosen, to 
 
 to agree with enter into an agreement with the promoters of the under- 
 
 lers of the" taking for the compensation to be paid for the extinction of 
 
 undertaking, such commonable and other rights, and all matters relating 
 
 thereto, for and on behalf of themselvesand all other parties 
 
 interested therein ; and all such parties shall be bound by 
 
 such agreement; audit shall be lawful for such committee 
 
 to receive the compensation so agreed to be paid, and the 
 
 receipt of such committee, or of any three of them, for such 
 
 compensation, shall be an effectual discharge for the same ; 
 
 and such compensation, when received, shall be apportioned 
 
 Sleeting to 
 appoint a 
 committee.
 
 8 Vict. c. 18 — Lands Clauses. cxxxvii 
 
 by the committee among the several persons interested 
 thereiii, according to tlieir respective interests, but the pro- 
 moters of the undertaking shall not be bound to see to the 
 apportionment or to the application of such compensation, 
 nor sliall they be liable for the misapplication or nonappli- 
 cation thereof. 
 
 1C5. If upon such committee being appointed, they shall Disputes to 
 fail 10 agree with the promoters of the undertaking as to the /„ other 
 amount of the compensation to be paid as aforesaid, the cases, 
 same shall be determined as in other cases of disputed com- 
 pensation. 
 
 106. If, upon being duly convened by the promoters of Ifno*^"™- 
 the undertaking, no effectual meeting of tlie parties entitled "plo'lnte'd. 
 to such commonable or other rights shall take place, or if the amount 
 taking place, such meeting fail to appoint such committee, '''.^'^ deter 
 the amount of such compensation shall be determined by a surveyor, 
 surveyor, to be appointed by two justices, as herein-before 
 provided in the case of parties who cannot be found. 
 
 107. Upon payment or tender to sucli committee, or any Upon pay- 
 three of tliem, or if there shall be no such committee then """"'"f,!;?"" 
 
 ... 1 • 1 • ■ 1 - 1 pensation 
 
 upon deposit in the liank in the manner provided in the payable to 
 like case of the compensation which sliall have been agreed commoners 
 upon or determined in respect of such commonable or other ^^^^ 
 rights, it shall be lawful for the promoters of the undertaking, 
 if they think fit, to execute a deed poll, duly stamped, in the 
 manner herein-before provided in the case of the purchase 
 of lands by them, and thereupon the lands in respect of 
 which such compensation shall have been so paid or depo- 
 sited shall vest in the promoters of the undertaking, freed 
 and discharged from all such commonable or other rights, 
 and they shall be entitled to immediate ])ossession thereof ; 
 and it shall be lawful for the Court of Chancery in England, 
 or the Court of Exchequer in Ireland, by an order to be 
 made upon petition, to order payment of the money so 
 deposited to a committee to be appointed as aforesaid, or to 
 make such other order in respect thereto, for the benefit of 
 the parties interested, as it shall think fit. 
 
 And with respect to lands subject to mortgage, be it Lands in 
 enacted as follows : Mortga>^e. 
 
 108. It shall be lawful for the promoters of the under- Power to 
 taking to purchase or redeem the interest of the mortgagee ■''^deem 
 of any such lands which may be required for the purposes 
 of the special act, and that whether they shall have pre- 
 viously purchased the equity or redemption of such lands or 
 not, and whether the mortgagee thereof be entitled thereto
 
 Deposit of 
 mortgage 
 money on 
 refusal to 
 accept. 
 
 Appendix — Statutes, 
 
 in his own right or in trust for any other party, and whether 
 he be in possession of such landsby virtue of such mortgage 
 or not, and. whether such mortgage affect such lands solely, 
 or jointly with any other lands not required for the purposes 
 of the special act, and in order thereto the promoters of the 
 undertaking may pay or tender to such mortgagee the prin- 
 cipal and interest due on such mortgage, together with his 
 costs and charges, if any, and also six months additional 
 interest, and thereupon such mortgagee shall immediately 
 convey his interest in the lands comprised in such mortgage 
 to the promoters of the undertaking, or as they shall direct, 
 or the promoters of the undertaking may give notice in 
 writing to such mortgagee that they will pay off the principal 
 and interest due on such mortgage at the end of six months, 
 computed from the day of giving such notice ; and if they 
 shall have given any such notice, or if the party entitled to 
 the equity of redemption of any such lands shall have given 
 six months notice of his intention to redeem the same, then 
 at the expiration of either of such notices, or at any inter- 
 mediate period, upon payment or tender by the promoters 
 of the undertaking to the mortgagee of the principal money 
 due on such mortgage, and the interest which would become 
 due at the end of six months from the time of giving either 
 of such notices, together with his costs and expenses, if any, 
 such mortgagee shall convey or release his interest in the 
 lands comprised in such mortgage to the promoters of the 
 undertaking, or as they shall direct. 
 
 109. If, in either of the cases aforesaid, upon such pay- 
 ment or tender, any mortgagee shall fail to convey or release 
 his interest in such mortgage as directed by the promoters 
 of the undertaking, or if he fail to adduce a good title thereto 
 to their satisfaction, then it shall be lawful for the promoters 
 of the undertaking to deposit in the bank, in the manner 
 provided by this act in like cases, the principal and interest, 
 together with the costs, if any, due on such mortgage, and 
 also, if such payment be made before the expii'ation of six 
 months notice as aforesaid, such further interest as would 
 at that time become due ; and it shall be lawful for them, if 
 they think fit, to execute a deed poll, duly stamped, in the 
 manner herein-before provided in the case of the purchase 
 of lands by them; and thereupon, as well as upon such 
 conveyance by the mortgagee, if any such be made, all the 
 estate and interest of such mortgagee, and of all persons in 
 trust for him, or for whom he may be a trustee, in such 
 lands, shall vest in the promoters of the undertaking, and 
 they shall be entitled to immediate possession thereof in 
 
 I
 
 8 Vict. c. 1 8 — Lands Clauses. cxxxix 
 
 case such mortgagee were himself entitled to such posses- 
 sion. 
 
 110. If any such mortgaged lands shall be of less value Sum to be 
 than the principal, interest, and costs secured thereon, the jJfoftKase" 
 value of such lands, or the compensation to be made by the exceeds the 
 promoters of the undertaking in respect thereof, shall be ^'''"^ °' *^^ 
 settled by agreement between the mortgagee of such lands 
 
 and the party entitled to the equity of redemption thereof 
 on the one part, and the promoters of the undertaking on 
 the other part, and if the parties aforesaid fail to agree 
 respecting the amount of such value or compensation, the 
 same shall be determined as in other cases of disputed com- 
 pensation ; and the amount of such value or compensation, 
 being so agreed upon or determined, shall be paid by the 
 promoters of the undertakingto the mortgagee in satisfaction 
 of his mortgage debt so far as the same will extend, and 
 upon payment or tender thereof the mortgagee shall convey 
 or release all his interest in such mortgaged lands to the 
 promoters of the undertaking, or as they shall direct. 
 
 111. If, upon such payment or tender as aforesaid being Deposit of 
 made, any such mortgagee fail so to convey his interest in '^Jf^sldoa'' 
 such mortgage, or to adduce a good title thereto to the tender, 
 satisfaction of the promoters of the undertaking, it shall be 
 
 lawful for them to deposit the amount of such value or 
 compensation in the bank, in the manner provided by this 
 act in like cases, and ever}' such payment or deposit shall 
 be accepted by the mortgagee in satisfaction of his mortgage 
 debt, so far as the same will extend, and sliall be a full dis- 
 charge of such mortgaged lands from all money due thereon ; 
 and it shall be lawful lor the promoters of the undertaking, 
 if they think fit, to execute a deed poll, duly stamped, in 
 the manner herein-before provided in the case of the pur- 
 chase of lands by them ; and thereupon such lands, as to 
 all such estate and interest as were then vested in the mort- 
 gagee, or any person in trust for him, shall become abso- 
 lutely vested in the promoters of the undertaking, and they 
 shall be entitled to immediate possession thereof in case 
 such mortgagee were himself entitled to such possession ; 
 nevertheless, all rights and remedies possessed by the mort- 
 gagee against the mortgagor, by virtue of any bond or 
 covenant or other obligation, other than the right to such 
 lands, shall remain in force in respect of so much of the 
 mortgage debt as shall not have been satisfied by such pay- 
 ment or deposit. 
 
 112. If a part only of any such mortgaged lands be Sum to be 
 required for the purposes of the special act, and if the part P*"^ where
 
 cxl Appendix — Statutes. 
 
 part only of SO requii'ed be of less value than the principal money, in- 
 mortgaged terest, and costs secured on such lands, and the mortgagee 
 an s ta en. gij^|[ jjqj- consider the remaining part of such lands a suffi- 
 cient security for the money charged thereon, or be not 
 willing to release the part so required, then the value of 
 such part, and also the conpensation (if any) to be paid in 
 respect of the severance thereof or otherwise, shall be settled 
 by agreement between the mortgagee and the party entitled 
 to the equity of redemption of such land on the one part, 
 and the promoters of the undertaking on the other, and if 
 the parties aforesaid fail to agree respecting the amount of 
 • such value or compensation, the same shall be determined 
 . as in other cases of disputed compensation ; and the amount 
 
 of such value or compensation, being so agreed upon or 
 determined, shall be paid by the promoters of the under- 
 taking to such mortgagee in satisfaction of his mortgage 
 debt, so far as the same will extend ; and thereupon such 
 mortgagee sliall convey or release to them, or as they shall 
 direct, all his interest in such mortgaged lands the value 
 whereof shall have been so paid ; and a memorandum of 
 what shall have been so paid shall be endorsed on the deed 
 creating such mortgage, and shall be signed by the mort- 
 gagee ; and a copy of such memorandum shall at the same 
 time (if required) be furnished by the promoters of the 
 undertaking, at their expense, to the party entitled to the 
 equity of redemption of the lands comprised in such mort- 
 gage deed. 
 Tieposit of W^. If, upon payment or tender to any such mortgagee 
 money when of the amount of the value or compensation so agreed upon 
 t'end'^'^ °" ^^ determined, such mortgagee shall fail to convey or release 
 to the promoters of the undertaking, or as they shall direct, 
 his interest in the lands in respect of which such compen- 
 sation shall so have been paid or tendered, or if he shall fail 
 to adduce a good title thereto to the satisfaction of the pro- 
 moters of the undertaking, it shall be lawful for the pro- 
 moters of the undertaking to pay the amount of such value 
 or compensation into the bank, in the manner provided by 
 this act in the case of monies required to be deposited in 
 such bank, and such payment or deposit shall be accepted 
 by such mortgagee in satisfaction of his mortgage debt, so 
 far as the same will extend, and shall be a full discharge of 
 the portion of the mortgaged lands so required from all 
 money due thereon; and it shall be lawful for the promoters 
 of the undertaking, if they think fit, to execute a deed poll, 
 duly stamped in the manner hereinbefore provided in the
 
 8 Vict. c. 18 — Lands Clauses. cxli 
 
 case of the purchase of lands by them; and thereupon such 
 lands shall become absolutely vested in the promoters of the 
 undertaking, as to all such estate and interest as were then 
 vested in the mortgagee, or any person in trust for him, and 
 in case such mortgagee were himself entitled to such posses- 
 sion they shall be entitled to immediate possession thereof; 
 nevertheless, every such mortgagee shall have the same 
 powers and remedies for recovering or compelling payment 
 of the mortgage money, or the residue thereof, as the case 
 maybe, and the interest thereof respectively, upon and out 
 of the residue of such mortgaged lands, or the portion 
 thereof not required for the purposes of the special act, as 
 he would otherwise have had or been entitled to for recover 
 ing or compelling payment thereof upon oroutof the whole 
 of the lands originally comprised in such mortgage. 
 
 114. Provided always, that in any of the cases herein- CompMr^a- 
 before provided with respect to lands subject to mortgage, if ti"n to he 
 in the mortgage deed a time shall have been limited for J^j'^^^.^"^^?,'!' 
 payment of the principal money thereby secured, and under mortga(»e 
 the provisions hereinbefore contained the mortgagee shall P""* "^ 
 have been required to accept payment of his mortgage stipulated 
 money, or of part thereof, at a time earlier than the time so time, 
 limited, the promoters of the undertaking shall pay to such 
 mortgagee, in addition to the sum which shall have been so 
 paid off, all such costs and expenses as shall be incurred by 
 such mortgagee in respect of or which shall be incidental to 
 the re-investment of the sum so paid off, such costs in case 
 of difference to be taxed and paym.ent thereof enforced in 
 the manner herein provided with respect to the costs of con- 
 veyances ; and if the rate of interest secured by such mort- 
 gage be higher than at the time of the same being so paid 
 off can reasonably be expected to be obtained on re-invest- 
 ing the same, regard being had to the then current rate of 
 interest, such mortgagee shall be entitled to receive from the 
 promoters of the undertaking, in addition to the principal 
 and interest hereinbefore provided for, compensation in re- 
 spect of the loss to be sustained by him by reason of his 
 mortgage money being soprematnrel3'paid off, the amount 
 of such compensation to be asccrt^iined, in case of difference, 
 as in other cases of disputed compensation; and until pay- 
 ment or tender of such compensation as aforesaid the pro- 
 moters of the undertaking shall not be entitled, as against 
 such mortgagee, to possession of the mortgaged lands under 
 the provision hereinbefore contained. 
 
 And with respect to lands charged with any ;-ent-service, !'''"'■
 
 cxlii 
 
 Release 
 of lands 
 from rent- 
 charges. 
 
 Release of 
 part of lands 
 from charge. 
 
 Deposit in 
 case of re- 
 fusal to re- 
 lease. 
 
 Charge to 
 continue on 
 lands not 
 taken. 
 
 Appendix — Statutes . 
 
 rent-charge, or chief or other rent, or other payment or 
 incumbrance not hereinbefore provided for, be it enacted as 
 follows: — 
 
 115. If any difference shall arise between the promoters 
 of the undertaking and the party entitled to any such charge 
 upon any lands required to be taken for the purposes of the 
 special act, respecting the consideration to be paid for the 
 release of such lands therefrom, or from the portion thereof 
 affecting the lands required for the purposes of the special 
 act, the same shall be determined as in other cases of dis- 
 puted compensation. 
 
 116. If part only of the lands charged with any such 
 rent-service, rent-charge, chief or other rent, payment, or 
 incumbrance, be required to be taken for the purposes of 
 the special act, the apportionment of any such charge may 
 be settled by agreement between the party entitled to such 
 charge and the owner of the lands on the one part, and the 
 promoters of the undertaking on the other part, and if such 
 apportionment be not so settled by agreement the same shall 
 be settled by two justices ; but if the remaining part of the 
 lands so jointly subject be a sufficient security for such 
 charge, then, with consent of the owner of the lands so 
 jointly subject, it shall be lawful for the party entitled to 
 such charge to release thei-efrom the lands required, on con- 
 dition or in consideration of such other lands remaining ex- 
 clusively subject to the whole thereof. 
 
 117. Upon payment or tender of the compensation so 
 agreed upon or determined to the party entitled to any such 
 charge as aforesaid, such party shall execute to the pro- 
 moters of the undertaking a release of such charge ; and if 
 he fail so to do, or if he fail to adduce good title to such 
 charge, to the satisfaction of the promoters of the tmder- 
 taking, it shall be lawfid for them to deposit the amount of 
 such compensation in the bank in the manner hereinbefore 
 provided in like cases, and also, if they think fit, to execute 
 a deed poll, duly stamped, in the manner hereinbefore pro- 
 vided in the case of the purchase of lands by them, and 
 thereupon the rent-service, rent-charge, chief or other rent, 
 payment or incumbrance, or the portion thereof in respect 
 whereof such compensation shall so have been paid, shall 
 cease and be extinguished. 
 
 118. If any such lands be so released from any such 
 charge or incumbrance, or portion thereof, to which they 
 were subject jointly with other lands, such last-mentioned 
 lands shall alone be charged with the whole of such charge, 
 or with the remainder thereof, as the case may be, and the 
 
 \
 
 8 Vict. c. 18 — Lands Clauses. cxliii 
 
 party entitled to the charge shall have all the same rights 
 and remedies over such last-mentioned lands, for the whole 
 or for the remainder of the charge, as the case may be, as 
 he had previously over the whole of the lands subject to 
 such charge ; and if upon any such charge or portion of 
 «harge being so released the deed or instrument creating or 
 transferring such charge be tendered to the promoters of 
 the undertaking for the purpose, they or two of them shall 
 subscribe, or if they be a corporation shall affix their com- 
 mon seal to a memorandum of such release endorsed on 
 such deed or instrument, declaring what part of the lands 
 originally subject to such charge shall have been purchased 
 by virtue of the special act, and if the lands be released 
 from part ot such charge, what proportion of such charge 
 shall have been released, and how much thereof continues 
 payable, or if the lands so requii'ed shall have been released 
 from the whole of such charge, then that the remaining 
 lands are thenceforward to remain exclusively charged 
 therewith ; and such memorandum shall be made and exe- 
 cuted at the expense of the promoters of the undertaking, 
 and shall be evidence in all courts and elsewhere of the facts 
 therein stated, but not so as to exclude any other evidence 
 of the same facts. 
 
 And with respect to lands subject to leases, be it enacted Leas^i. 
 as follows : 
 
 119. Ifanylands shall be comprised in a lease for a where part 
 terms of years unexpired, part only of which lands shall be only of land 
 required for the purposes of the special act, the rent payable taken, the "^ 
 in respect of the lands comprised in such lease shall be rent to be 
 apportioned between the lands so required and the residue apportioned, 
 of such lands ; and such apportionment may be settled by 
 agreement between the lessor and lessee of such lands on 
 the one part, and the promoters of the undertaking on the 
 other part, and if such apportionment be not so settled by 
 agreement between the parties, such apportionment shall be 
 settled by two justices ; and after such apportionment the 
 lessee of such lands shall, as to all future accruing rent, be 
 liable only to so much of the rent as shall be so apportioned 
 in respect of the lands not required for the purposes of the 
 special act; and as to the lauds not so required, and as 
 against the lessee, the lessor shall have all the same rights 
 and remedies for the recovery of such portion of rent as 
 previously to such apportionment he had for the recovery of 
 the whole rent reserved by such lease ; and all the covenants, 
 conditions, and agreements of such lease, except as to the
 
 cxliv Appendix — Statutes. 
 
 amount of rent to be paid, shall remain in force with regard 
 to that part of the land which shall not be required for the 
 piu'poses of the special act, in the same manner as they 
 would have done in case such part only of the land had been 
 included in the lease. 
 Tenant* to 120. Every such lessee as last aforesaid shall be entitled 
 1)6 compen- ^(^ receive from the promoters of the undertaking compen- 
 sation for the damage done to him in his tenancy by reason 
 of the severance of the lands required from those not 
 required, or otherwise by reason of the execution of the 
 works. 
 Conipen'^a. 121. If any such lands shall be in the possession of any 
 ^"•'di'J'"^ person having no greater interest therein than as tenant for 
 ii-nants at a year or from year to year, and if such person be required 
 will, &c. to give up possession of any lands so occupied by him before 
 the expiration of his term or interest therein, he shall be 
 entitled to compensation for the value of his unexpired term 
 or interest in such lands, and for any just allowance which 
 ought to be made to him by an in-coming tenant, and for 
 any loss or injury he may sustain, or if a part only of such 
 lands be required, compensation for the damage done to him 
 in his tenancy by severing the lands held by him, or other- 
 wise injuriously affecting the same; and the amountof such 
 compensation shall be determined by two justices, in case 
 the parties differ about the same ; and upon payment or 
 tender of the amount of such compensation all such persons 
 shall respectively deliver up to the promoters of the under- 
 taking, or to the person appointed by them to take posses- 
 sion thereof, any such lands in their possession required for 
 the purposes of the special act (</). 
 Where great- 122. If any party, having agreater interest than as tenant 
 er interest at will, claim compensation in respect of any unexpired 
 frol^year^^o" term or interest under any lease or grant of any such lands, 
 year, lease to the promoters of the undertaking may require such party to 
 be produced, pi-oduce the lease or grant in respect of which such claim 
 shall be made, or the best evidence thereof in his power ; 
 
 (d) Tenant from year to year, &c., where required to give up 
 possession under this clause, not entitled to compensation in 
 regard thereof, where the possession is not actually given up, 
 but by a subsequent arrangement between the tenant and the 
 company, is retained by him till the full expiration of his 
 tenancy, see Treatise, p. 189. 
 
 It would seem that under the provisions of this clause, a 
 tenant required to give up possession may claim compensation 
 for sometliing more than a mere legal interest, viz. for good 
 will and the like. See Treatise, pp. 190, 191.
 
 8 Vict. c. ] 8 — Lands Clauses, cxlv 
 
 and if, after demand made in writing by the promoters of 
 the undertaking, such lease or grant, or such best evidence 
 thereof, be not produced within twenty-one days, the party 
 so claiming compensation shall be considered as a tenant 
 holding only from year to year, and be entitled to compen- 
 sation accordingly. 
 
 123. And be it enacted, that the powers of the promoters Limitof time 
 of the undertaking for the compulsory purchase or takino- forcompuU 
 of lands for the purposes of the special act shall not be chase''."'" 
 exercised after the expiration of the prescribed period, and if 
 
 no period be prescribed not after the expiration of three 
 years from the passing of the special act. 
 
 And with respect to interests in lands which have by interests 
 mistake been omitted to be purchased, be it enacted as omitted to be 
 follows : purchased. 
 
 124. If, at any time after the promoters of the under- Promoters of 
 taking shall have entered upon any lands which under the the under- 
 provisions of this or the special act, or any act incorporated powefed"to 
 therewith, they were authorized to purchase, and which purchase 
 shall be permanently required for the purposes of the special {'''^^.^^h '" 
 act, any party shall appear to be entitled to any estate, purchase 
 right, or interest in or charge affecting such lands whicli the whereof may 
 promoters of the undertaking shall tlu-ough mistake or inad- omitted by 
 vertence have failed or omitted duly to purchase or to pay mistake, 
 compensation for, then, whether the period allowed for the 
 purchase of lands shall have expired or not, the promoters 
 
 of the undertaking shall remain in the undisturbed posses- 
 sion of such lands, provided, within six months after notice 
 of such estate, right, interest, or charge, in case the same 
 shall not be disputed by the promoters of tlie undertaking, 
 or in case the same shall be disputed then within six months 
 "after the right thereto shall have been fuially established by 
 law in favour of the party claiming the same, tlie promoters 
 of the undertaking shall purchase or pay compensation for 
 the same, and shall also pay to such party, or to any otlua- 
 party who may establish a right thereto, full coinpcnsatioa 
 for the mesne profits or interest which would have accrued 
 to such parties respectively in respect thereof during the 
 interval between the entry of the promoters of the under- 
 taking thereon and the time of the payment of such pur- 
 chase money or compensation by the promoters of the un- 
 dertaking, so far as such mesne ])rofits or interest may be 
 recoverable in law or equity; and such purchase money or 
 cornpensation shall be agreed on or awarded and ])aid in 
 like manner as according to the provisions of this act tlic 
 G c
 
 cxlvi Appendix — Statutes. 
 
 same respectively would have been agreed on or awarded 
 and paid in case the promoters of the undertaking had pur- 
 chased such estate, right, interest, or charge before their 
 entering upon such land, or as near thereto as circum- 
 stances will admit. 
 Howvalueof 125. In estimating the compensation to be given for any 
 such lands to .such last-mentioned lands, or any estate or interest in the 
 ees imated. g^me, or for any mesne profits thereof, the jury, or arbitra- 
 tors, or justices, as the case may be, shall assess the same 
 according to what they shall find to have been the value of 
 such lands, estate, or interest, and profits, at the time such 
 lands wei-e entered upon by the promoters of the under- 
 taking, and without regard to any improvements or works 
 made in the said lands by the promotei-s of the undertak- ' 
 ing, and as though the works had not been constructed. 
 Promoters of 126. In addition to the said purchase money, compensa- 
 the under- tion, or satisfaction, and before the promoters of the under- 
 the costs of'' taking shall become absolutely entitled to any such estate, 
 litigation as interest, or charge, or to have the same merged or extin- 
 to sucli guished for their benefit, they shall, when the right to any- 
 
 such estate, interest, or charge shall have been disputed by 
 the company, and detennined in favour of the party claim- 
 ing the same, pay the full costs and expenses of any pro- 
 ceedings at law or in equity for the determination or reco- 
 very of the same to the parties with whom any such litiga- 
 tion in respect thereof shall have taken place; and such 
 costs and expenses shall, in case the same shall be disputed, 
 be settled by the proper officer of the court in which such 
 litigation took place. 
 
 Sale of ^^^ ^^'^*^^^ respect to lands acquired by the promoters of 
 
 superfiuous the imdertaking under the provisions of this or the special 
 
 Land, ^ct, or any act incorporated therewith, but which shall not 
 
 be required for the pui'poses thereof, be it enacted as 
 
 follows : 
 
 Lands not ^^'^ • ^'^^'^^^^ the prescribed period, or if no period be 
 
 wanted to be prescribed within ten yeai-s after the expiration of the time 
 
 lold, or in limited by the special act for the completion of the works, 
 
 Test in own- the promoters of the undertaking shall absolutely sell and 
 
 er» of ad- dispose of all such superfluous lands, and apply the pur- 
 
 land°^ chase money arising from such sales to the pui-poses of the 
 
 special act; and in default thereof all such superfluous lands 
 
 remaining unsold at the expiration of such period shall 
 
 thereupon vest in and become the property of the owners 
 
 of the lands adjoining thereto, in proportion to the extent 
 
 of their lands respectively adjoining the same.
 
 8 Vict. c. 18 — Lands Clauses. cxlvii 
 
 128. Before the promoters of the undertaking dispose of Lands to be 
 any such superfluous lands they shall, unless such lands be °^"''^ t° 
 situate within a town, or be lands built upon or used for "andrfrom 
 building purposes, first offer to sell the same to the person "^^^"^^ ^^^y 
 then entitled to the lands (if any) from which the same were n^i? °tlk'' 
 originally severed; or if such person refuse to purchase the or toad%tn- 
 same, or cannot after diligent inquiry be found, then the '"s owners. 
 like offer shall be made to the person or to the several persons 
 ■whoselands shall immediately adjoin the lands so proposed 
 
 to be sold, such persons being capable of enterinf into a 
 contract for the purchase of such lands ; and where more 
 than one such person shall be entitled to such right of pre- 
 emption such offer shall be made to such persons in succes- 
 sion, one after another, in such order as the promoters of 
 the undertaking shall think fit.(e) 
 
 129. If any such persons be desirous of purchasing such Right of pre- 
 lands, then within six weeks after such offer of sale they f^mption to 
 shall signify their desire in that behalf to the promoters of wUhhi'six^ 
 the undertaking, or if they decline such offer, or if for six weeks, 
 weeks they neglect to signify their desire to purchase such 
 
 lands, the right of pre-emption of everj^ such person so de- 
 clining or neglecting in respect of the lands included in such 
 offer shall cease ; and a declaration in writing made before 
 a justice by some person not interested in the matter in 
 question, stating that such offer was made and was refused, 
 or not accepted within six weeks from the time of making 
 the same, or that the person or all the persons entitled to 
 the right of pre-emption were out of the country, or could 
 not after diligent inquiry be found, or were not capable of 
 entering into a contract for the purchase of such lands, shall 
 in all courts be sufficient evidence of the facts therein stated. 
 
 130. If any person entitled to such pre-emption be de- Differences 
 sirous of purchasing any sucli lands, and such person and as to price to 
 the promoters of the undertaking do not agree as to the arbiter"-"' ''^' 
 price thereof, then such price shall be ascertained by arbi- tion. 
 tration, and the costs of such arbitration shall be in the dis- 
 cretion of the arbitrators. 
 
 131. Upon payment or tender to tlie promoters of the i.andstobe 
 undertaking of the purchase money so agreed upon or de- j,""^7r!'' '" 
 
 chaners. 
 (e) As to effect of proviso giving right of pre-emption to 
 owners of adjoining lands on company's power of sale, see 
 Treatise, pp. 125, 120. Also as to effect of company's con- 
 tracting to sell surplus land without first offering same to 
 owners of adjoining land, see Treatise, p. 139. 
 
 GG 2
 
 cxiviii 
 
 Appendix — Statutes. 
 
 Effect of 
 the word 
 
 termined as aforesaid, they shall convey such lands to the 
 purchasers thereof by deed under the common seal of the 
 promoters of the undertaking, if they be a corporation, or if 
 not a corporation under the hands and seals of the promoters 
 of the undertaking or any two of the directors or managers 
 thereof acting by the authority of the body ; and a deed so 
 executed shall be eflPectual to vest the lands comprised therein 
 in the purchaser of such lands for the estate which shall so 
 have been purchased by him : and a receipt under such 
 common seal, or under the hands of two of the directors or 
 managers of the undertaking as aforesaid, shall be a suffi- 
 cient discharge to the purchaser of any such lands for the 
 purchase money in such receipt expressed to be received. 
 
 132. In every conveyance of lands to be made by the 
 promoters of the undertaking under this or the special act 
 cMveyances. ^he Avord " grant " shall operate as express covenants by the 
 pi'omoters of the imdertaking, for themselves and their suc- 
 cessors, or for themselves, their heirs, executors, adminis- 
 trators, and assigns, as the case may be, with the respective 
 grantees therein named, and the successors, heirs, executors, 
 administrators, and assigns of such grantees, according to the 
 quality or nature of such grants, and of the estate or interest 
 therein expressed to be thereby conveyed, as follows, except 
 so far as the same shall be restrained or limited by express 
 words contained in any such conveyance; (that is to say,; 
 A covenant that, notwithstanding any act or default done 
 by the promoters of the undertaking, thej' were at the 
 time of the execution of such conveyance seised or pos- 
 sessed of the lands or premises thereby granted for an 
 indefeasible estate of inheritance in fee simple, free 
 from all incumbrances done or occasioned by them, or 
 otherwise for such estate or interest as therein ex. 
 pressed to be thereby granted, free from incumbrances 
 done or occasioned by them : 
 A covenant that the grantee of such lands, his heirs, suc- 
 cessors, executors, administratoi-s, and assigns, (as the 
 case may be,) shall quietly enjoy the same against the 
 promoters of the undertaking, and their successors, 
 and all other persons claiming under them, and be in- 
 demnified and saved harmless b)' the promoters of the 
 undertaking and their successors from all incumbrances 
 created by the promoters of the undertaking : 
 A covenant for further assurance of such lands, at the 
 expense of such grantee, his heirs, successors, exe- 
 cutors, administrators, or assigns (as the case may be,) 

 
 8 Vict. c. 18 — Lands Clauses. cxlix 
 
 by the promoters of the undertaking, or then- succes- 
 sors, and all other persons claiming under them: 
 And all such grantees, and their several successors, heirs, 
 executors, administrators, and assigns respectively, accord- 
 ing to their respective quality or nature, and the estate or 
 interest in such conveyance expressed to be conveyed, may 
 in all actions brought by them assign breaches of covenants, 
 as they might do if such covenants were expressly inserted 
 in such conveyances. 
 
 133. And be it enacted, that if the promoters of the Landtaxand 
 undertaking become possessed by virtue of this or the spe- fo be niade 
 cial act, or any act incorporated therewith, of any lands good, 
 charged with tlie land tax, or liable to be assessed to the 
 
 poor's rate, they shall from time to time, until the works 
 shall be completed and assessed to such land tax or poors 
 rate, be liable to make good the deficiency in the several 
 assessments for land tax and poor's rate by reason of such 
 lands having been taken or used for the purposes of the 
 works, and such deficiency shall be computed according to 
 the rental at which such lands, with any building thereon, 
 were valued or rated at the time of the passing of the sjje- 
 cial act ; and on demand of such deficiency the promoters 
 of the undertaking, or their treasure!-, shall pay all such de- 
 ficiencies to the collector of the said assessments respec- 
 tively; nevertheless, if at any time the promoters of the 
 undertaking think fit to redeem such land tax, they may do 
 so in accordance with the powers in that behalf given by 
 the acts for the redemption of the land tax. 
 
 134. And be it enacted, that any summons or notice, or service of 
 any writ or other proceeding at law or in equity, requiring notices upon 
 to be served upon the promoters of the undertaking, may '^°™pany- 
 be served by the same being left at or transmitted through 
 
 the post directed to the principal office of the promoters of 
 the undertaking, or one of the principal offices where there 
 shall be more than one, or being given or transmitted 
 through the post directed to the secretary, or in case there 
 be no secretary the solicitor of the said promoters. (_/') 
 
 135. And be it enacted, that if any party shall have Tender of 
 committed any irregularity, trespass, or other wrongful pro- amends, 
 ceeding in the execution (g) of this or tlie special act, or any 
 
 act incorporated therewith, or by virtue of any power or 
 authority thereby given, and if, before action brought m 
 
 f/) See Treatise, pp. 383, 384. 
 
 (g) What acts to be deemed acts done in execution of act, 
 c, see Treatise, p. 380.
 
 cl Appendix — Statutes. 
 
 respect thereof, such party make tender of sufficient amends 
 to the party injured, such last-mentioned party shall not 
 recover in any such action ; and if no such tender shall have 
 been made it shall be lawful for the defendant, by leave of 
 the court where such action shall be pending at any time 
 before issue joined, to pay into court such sum of money 
 as he shall think fit, and thereupon such proceeding shall 
 be had as in other cases where defendants are allowed to 
 pay money into court. 
 
 Recovery And with respect to the recovery of forfeitures, penal- 
 of Penalties, ties, and costs, be it enacted as follows : 
 Penalties to 136. Every penalty or forfeiture imposed by this or the 
 be snmma- special act, or by any bye law made in pursuance thereof, 
 ed^efore'^"^ the recovery of which is not otherwise provided for, may 
 two justices, be recovered by summary proceeding before two justices ; 
 and on complaint being made to any justice he shall issue 
 a summons requiring the party complained against to ap- 
 pear before two justices at a time and place to be named in 
 such summons ; and every such summons shall be served 
 on the party offending either in person or by leaving the 
 same with some inmate at his usual place of abode ; and 
 upon the appearance of the party complained against, or in 
 his absence, after proof of the due service of such sum- 
 mons, it shall be lawful for any two justices to proceed to 
 the hearing of the complaint, and that although no informa- 
 tion in writing or in print shall have been exhibited before 
 them ; and upon proof of the offence, either by the confes- 
 sion of the party complained against, or upon the oath of 
 one credible witness or more, it shall be lawM for such 
 justices to convict the offender, and upon such conviction 
 to adjudge the offender to pay the penalty or forfeiture in- 
 curred, as well as such costs attending the conviction as 
 such justices shall think fit. 
 Penalties to ^^^- ^^' forthwith upon any such adjudication as afore- 
 be levied by said, the amount of the penalty or forfeiture, and of such 
 distress. costs as aforesaid, be not paid, the amount of such penalty 
 and costs shall be levied by distress, and such justices or 
 either of them shall issue their or his warrant of distress 
 accordingly. 
 Distres3,how 138. Where in this or the special act, or any act incor- 
 to be levied, porated therewith, any sum of money, whether in the na- 
 ture of penalty, costs, or otherwise, is directed to be levied 
 by distress, such sum of money shall be levied by distress 
 and sale of the goods and chattels of the party liable to pay 
 the same ; and the overplus arising from the sale of such
 
 8 Vict. c. 18 — Lands Clauses. cli 
 
 goods and chattels, after satisi'ying such sum of money and 
 the expenses of the distress and sale, shall be returned, on 
 demand, to the party whose goods shall have been dis- 
 trained. 
 
 139. The justices by whom any such penalty or forfeiture Application 
 shall be imposed may, where the application thereof is ot penalties, 
 not otherwise provided for, award not more than one half 
 thereof to the informer, and shall award the remainder to 
 
 the overseers of the poor of the parish in which the offence 
 shall have been committed, to be applied in aid of the poor's 
 rate of such parish, or if the place wherein the offence shall 
 have been committed shall be extra-parochial, then such 
 justices shall direct such remainder to be applied in aid of 
 the poor's rate of such extra-parochial place, or if there 
 shall not be any poor's rate therein in aid of the poor's rate 
 of any adjoining parish or district. 
 
 140. If any such sum shall be payable by the promoters Dlstreis 
 of the undertaking, and if suflicient goods of the said pro- ^K'*'"^' *-^^ 
 moters cannot be found whereon to levy the same, it may, 
 
 if the amount thereof do not exceed twenty pounds, be re- 
 covered by distress of the goods of the treasurer of the said 
 promoters, and the justices aforesaid, or either of them, on 
 application, shall issue their or his warrant accordingly ; 
 but no sucli distress shall issue against the goods of such 
 treasurer unless seven daysprevious notice in writing, stating 
 the amount so due, and demanding payment thereof, have 
 been given to such treasurer or left at his residence ; and if 
 such treasurer pay any money under such distress as afore- 
 said he may retain the amount so paid by him, and all costs 
 and expenses occasioned thereby, out of any money belong- 
 ing to the promoters of the undertaking coming into his 
 custody or conti-ol, or he may sue them for the same. 
 
 141. No distress levied by virtue of this or the special Distress not 
 act, or any act incorporated therewith, shall be deemed un- ^aiiuif "' 
 lawful, nor shall any party making the same be deemed a form, 
 trespasser, on account of any defect or want of form in the 
 summons, conviction, warrant of distress, or other proceed- 
 ing relating thereto, nor shall such party be deemed a tres- 
 passer ab initio on account of any irregularity afterwards 
 committed by him, but all persons aggrieved by such defect 
 
 or irregularity may recover full satisfaction for the special 
 damage in an action upon the case. 
 
 142. No person shall be liable for the payment of any Penaltlento 
 penalty or forfeiture imposed by virtue of this or the special ^'jj^|1^''^[°' 
 act, or any act incorporated therewith, for any offence made n,onth».
 
 clii Appendix — Statutes. 
 
 cognizable before a justice, unless the complaint respecting 
 
 such offence shall have been made before such justice within 
 
 six months next after the commission of such offence. 
 
 Penalty on 14S. It shall be lawful for any justice to summon any 
 
 witnesses person to appear before him as a witness in any matter in 
 
 making de- '^ , . , ^'^\ . ^ ^^ ^ . . ,. . < , 
 
 fault. winch such justice shall have jurisdiction under the pro- 
 
 visions of this or the special act at a time and place men- 
 tioned in such summons, and to administer to him an oath 
 to testify the truth in such matter; and if any person so 
 summoned shall, without reasonable excuse, refuse or neg- 
 lect to appear at the time and place appointed for that 
 purpose, having been paid or tendered a reasonable sum for 
 his expenses, or if any person appearing shall refuse to be 
 examined upon oath or to give evidence before such justice, 
 every such person shall forfeit a sum not exceeding five 
 pounds for every such offence. 
 Form of con- i44_ The justices before whom any person shall be con- 
 victed of any offence against this or the special act, or any 
 act incorporated therewith, may cause the con^'iction to be 
 drawn up according to the form in the schedule (C.)to this 
 act annexed. 
 Proceedings 145. No proceeding in pursuance of this or the special 
 "°* 'h d^f ^^^' °^ ^"y ^^^ incorporated therewith, shall be quashed or 
 want of vacated for want of form, nor shall the same be removed by 
 form. certiorai'i or otherM'ise into any of the superior courts, (i) 
 
 Parties I'iS. If any party shall feel aggrieved by any detennin- 
 
 allowed to ation or adjudication of any justice with respect to any 
 quarter*ses- P^^^^^^J °^' forfeiture under the provisions of this or the 
 sions on special act, or any act incorporated therewith, such party 
 giving secu- j^-,jjy appeal to the general quarter sessions for the county or 
 place in which the cause of appeal shall have arisen ; but 
 no such appeal shall be entertained unless it be made within 
 four months next after the making of such determination 
 or adjudication, nor unless ten days notice in writing of 
 such appeal, stating the nature and grounds thereof, be given 
 to the party against whom the appeal shall be brought, nor 
 unless the appellant forthwith after such notice enter into 
 recognizances, with two sufficient sureties, before a justice, 
 conditioned duly to pi'osecute such appeal, and to abide the 
 order of the court thereon. 
 Court to 147. At the quarter sessions for which such notice shall 
 
 make such be given the court shall proceed to hear and determine the 
 order as they ^ 
 
 think rea- 
 sonable. («) As to the effect of taking away certiorari, see Treatiie, 
 p. 402, et seq.
 
 8 Vict. c. 18— Lands Clauses. cliii 
 
 appeal in a summary way, or tiiey may, if they think fit, 
 adjourn it to the following sessions, and upon the hearing of 
 sucli appeal the court may, if they think fit, mitigate any 
 penalty or forfeiture, or they may confirm or quash the ad- 
 judication, and order any money paid by the appellant, or 
 levied by distress upon his goods, to be returned to him, 
 and may also order such further satisfaction to be made to 
 the party injured as they may judge reasonable ; and they 
 may make such order concerning the costs, both of the ad- 
 judication and of the appeal, as they may think reasonable. 
 
 148. Provided always, and be it enacted, that notwith- Receiver of 
 standing anything herein or in the special act, or any act the metro- 
 incorporated therewith, contained, everypenalty or forfeiture uce dTst'rict 
 imposed by this or the special act or any act incorporated to receive 
 therewith, or by any bye law in pursuance thereof, in respect f^°''"'^* 
 of any offence which shall take place within the metropolitan witiiiVhis 
 police district, shall be recovered, enforced, accounted for, district. 
 and, except where the application thereof is otherwise 
 specially provided for, shall be paid to the receiver of the 
 metropolitan police district, and shall be applied in the same 
 manner as penalties or forfeitures, other than fines upon 
 drunken persons, or upon constables for misconduct, or for 
 assaults upon police constables, are directed to be recovered, 
 enforced, accounted foi-, paid, and applied by an act passed 
 
 in the third year of the reign of her present Majesty, in- 
 tituled " An Act for regulating the Police Courts in the 2 & 3 Vict. 
 Metropolis," and every order or conviction of any of the "^^ ' * 
 police magisti'ates in respect of any such forfeiture or 
 penalty shall be subject to the like appeal, and upon the 
 same terms as is provided in respect of any order or convic- 
 tion of any of the said police magistrates by the said last- 
 mentioned act ; and every magistrate by whom any order 
 or conviction shall have been made shall have tlie same 
 power of binding over the witnesses who shall have been 
 examined, and such witnesses shall be entitled to the same 
 allowance of expenses as he or they would have had or been 
 entitled to in case the order, conviction, and a])peal had 
 been made in pursuance of the provisions of tlie said last- 
 mentioned act. 
 
 149. And be it enacted, that any person who upon any Persons ^ 
 examination upon oath under die provisions of this or the ^J.i),"^^^^ "" 
 special act, or any act incorporated tlierewitli, sliall wilfully nabie to 
 and corruptly give false evidence, sliall be liable to tlie P^J'."j^''"' "'" 
 penalties of wilful and corrupt ])erjury. 
 
 And with respect to the provision to be made for affording ""'""^^i 
 access to the special act by all parties interested, be it '" -^^J"" 
 enacted as follows : — 
 
 G G 5
 
 7 W. 4 & 1 
 Vict. c. 83. 
 
 Penalty on 
 company 
 failing to 
 keep or 
 deposit. 
 
 Act not to 
 extend to 
 Scotland. 
 Act may be 
 amended 
 this session. 
 
 Appendix — Statutes. 
 
 150. The company shall, at all times after the expiration 
 of six months after the passing of the special act, keep iu 
 their principal office of business a copy of the special act, 
 printed by the printers to her Majesty, or some of them ; 
 and where the undertaking shall be a railway, canal, or 
 other like undertaking, the works of which shall not be con- 
 fined to one town or place, shall also within the space of 
 such six months deposit in the office of each of the clerks of 
 the peace of the several counties into which the works shall 
 extend a copy of such special act so printed as aforesaid ; 
 and the said clerks of the peace shall receive, and they and 
 the company respectively shall retain, the said copies of the 
 special act, and shall permit all persons interested to inspect 
 the same, and make extracts or copies therefrom, in the Uke 
 manner, and upon the like terms, and under the like penalty 
 for default, as is provided in the case of certain plans and 
 sections by an act passed iu the first year of the reign of 
 her present Majesty, intituled " An Act to compel Clerks of 
 the Peace for Counties and other Persons to take the Cus- 
 tody of such Documents as shall be directed to be deposited 
 with them under the Standing Orders of either House of 
 Parliament." 
 
 151. If the company shall fail to keep or deposit, as 
 herein-before mentioned, any of the said copies of the 
 special act, they shall forfeit twenty pounds for every such 
 offence, and also live pounds for every daj' afterwards during 
 which such copy shall be not so kept or deposited. 
 
 152. And be it enacted, that this act shall not extend to 
 Scotland. 
 
 153. And be it enacted, that this act may be amended 
 or repealed by any act to be passed in the present session of 
 parliament. 
 
 SCHEDULES referred to in the foregoing Act. 
 
 Schedule (A.) 
 
 Form of Conveyance. 
 
 I , of , in consideration of the sum of paid to 
 
 me [or, as the case may be, into the bank of England [or bank of 
 Ireland], in the name and with the privity of the accountant 
 general of the Couit of Chancery, ex- parte " the promoters of
 
 S Vict. c. 18 — Lands Clauses. civ 
 
 the undertaking " [naming them], or to A. B. of and C. D. 
 of two trustees appointed to receive the same], pursuant to 
 the [here name the special act],hy the [here name the company or 
 other promoters of the un(ieTtaking'\,incorpora.ted[or constituted} 
 by the said act, do hereby convey to the said company [or other 
 description] their successors and assigns, all [describing the 
 premises to be conveyed], together with all ways, rights, and 
 appurtenances thereto belonging, and all such estate, right, title, 
 and interest in and to the same as 1 am or shall become seised or 
 possessed of, or am by the said act empowered to convey, to hold 
 the premises to the said company [or other description], their 
 successors and assigns, for ever, according to the true intent and 
 meaning of the said act. In witness whereof I have hereunto 
 set my hand and seal, the day of in the year of our 
 
 Lord 
 
 Schedule (B.) 
 
 Form of Conveyance on Chief Rent. 
 
 I , of , in consideration of the rent charge to be paid 
 to me, my heirs and assigns, as hereinafter mentioned, by " the 
 promoters of the undertaking" [naming ?Aew], incorporated [or 
 constituted] by virtue of the [here name the special act], do 
 hereby convey to the said company [or other description], their 
 successors and assigns, all [describing the premises to he con- 
 veyed], together with all ways, rights, and appurtenances there- 
 unto belonging, andall my estate, right, title, and interest in and 
 to the same and every part thereof, to hold the said premises to 
 the said company [or other description], their successors and 
 assigns, for ever, according to the true intent and meaning of the 
 said act, they the said company [or other description], their suc- 
 cessors and assigns, yielding and paying unto me, my heirs and 
 assigns, one clear yearly rent of , by equal quarterly [or 
 
 half-yearly, as agreed upon], portions, henceforth, on the 
 [stating the days] clear of all taxes and deductions. In wit- 
 ness whereof I have hereunto set my hand and seal, the day 
 of , in the year of our Lord 
 
 Schedule (C.) 
 
 Form of Conviction. 
 to wit. 
 Be it remembered, that on the day of in the year 
 
 of our Lord A. B. is convicted before us C, D., two of 
 
 her Majesty's justices of the peace for the county of [here 
 
 describe the offence generally, and ihe time and place when and 
 where committed], contrary to the ['lere name the special act]. 
 Given under our hands and seals, the day and year first above 
 ■written. ^-i ^'
 
 clvi Appendix — Statutes. 
 
 8 Vict. c. 20. 
 
 An Act for consolidating in One Act certain Provi- 
 sions usually inserted in Acts authorizing the making 
 of Railways. [8t,h May, 1845.] 
 
 Whereas it is expedient to comprise in one general act 
 sundry provisions usually introduced into acts of parliament 
 authorizing the construction of i-ailways, and that as well 
 for the purpose of avoiding the necessity of repeating such 
 provisions in each of the several acts relating to such under- 
 takings as for ensuring gi-eater uniformity in the provisions 
 themselves : and whereas a bill is now pending in parlia- 
 ment, intituled " An Act for consolidating in One Act cer- 
 tain Provisions usually inserted in Acts authorizing the 
 taking of Lands for Undertakings of a public Nature," and 
 which is intended to be called " The Lands Clauses Con- 
 solidation Act, 1S45 : may it therefore please your Majesty 
 that it may be enacted, and be it enacted by the Queen's 
 most excellent majesty, by and with the advice and consent 
 of the lords spiritual and temporal, and commons, in this 
 present parliament assembled, and by the authority of the 
 Operation of same, that this act shall apply to every railway which shall 
 this act con- ^ ^^^ which shall hereafter be passed be authorized to 
 
 fined to fiiture -' - , i i ■ i n i • t • i , 
 
 railways. be constructed, and this act shall be mcorporated with such 
 
 act ; and all the clauses and provisions of this act, save so 
 far as they shall be expressly varied or excepted by any such 
 act, shall apply to the undertaking authorized thereby, so 
 far as the same shall be applicable to such undertaking, 
 and shall, as well as the clauses and provisions of every 
 other act which shall be incoi-porated with such act, form 
 part of such act, and be construed together therewith as 
 forming one act. 
 Interpreta- And with respect to the construction of this act and of 
 
 tions m this Qji^gj. ^^ts to be incorporated therewith, be it enacted as 
 
 follows : 
 
 " special 2. The expression " the special act," used in this act, 
 
 act ;" shall be construed to mean any act which shall be hereafter 
 
 passed authorizing the construction of a railway, and with 
 
 which this act shall be so incorporated as aforesaid ; and 
 
 " pre- the word " prescribed," used in this act in reference to any 
 
 scribed ;" matter herein stated, shall be construed to refer to such 
 
 matter as the same shall be prescribed or provided for in 
 
 J
 
 8 Vict. c. 20— Railways Clauses. clvii 
 
 the special act ; and the sentence in which such word shall 
 occur shall be construed as if, instead of the word " pre- 
 scribed," the expression " prescribed for that purpose in 
 the special act" had been used; and the expression " the " «l>e lands ;" 
 lands" shall mean the lands which shall by the special act 
 be authorized to be taken or used for the purposes thereof- 
 and the expression " the undertaking" shall mean the rail- " the under- 
 way and works, of whatever description, by the special act 'aiding-" 
 authorized to be executed. 
 
 3. The following words and expressions, both in this and Interprcta- 
 the special act, shall have the meanings hereby assigned to ''°^' }° ""'^ 
 them, unless there be something in the subject or context cfai aef ;*'"'" 
 repugnant to such construction ; (that is to say,) 
 
 Words importing the singular number only shall include Number ; 
 the plural number; and words importing the plural 
 number only shall include also the singular number : 
 Words importing the masculine gender only shall include Gender; 
 
 females : 
 The word "lands" shall include messuages, lands, tene- " Lands;" 
 
 nients, and hereditaments of any tenure : 
 The word " lease" shall include an agreement for a " Lease;" 
 
 lease : 
 The word " toll" shall include any rate or charge or other " Toll;" 
 payment payable under the special act for any passen- 
 gei", animal, carriage, goods, merchandize, articles, 
 matters, or things conveyed on the railway : 
 The word " goods" shall include things of every kind con- " Goods ;" 
 
 veyed upon the railway : 
 The word " month" shall mean calendar month : " Month ;" 
 
 The expression "superior courts" shall mean her Ma- "Superior 
 jesty's Superior Courts of Record at Westminster or "=""''•5;" 
 Dublin, as the case may require : 
 The word "oath" shall include affirmation in the case of" Oaih;" 
 quakers, or other declaration lawfully substituted for 
 an oath in the case of any other persons exempted by 
 law from the necessity of taking an oath : 
 The word " county" shall include any riding or other like " Couiiiy ;" 
 division of a county, and shall also include county of a 
 city or county of a town : i • •- •• 
 
 The word "sheriff" shall include undersheriff or other """""*"" ' 
 legally competent deputy ; and where any matter in 
 relation to any lands is required to be done by any 
 sheriff or clerk of the peace, the expression " tlie she- 
 riff," or the expression " the clerk of the peace," shall '' '.''i;/'''''',"' 
 m such case be construed to mean the shenft or tlic
 
 ;lviii Aj^pendix — Statutes. 
 
 clerk of the peace of the county, city, borough, liberty, 
 cinque port, or place where such lands shall be situate ; 
 and if the lands in question, being the propertj' of one 
 and the same party, be situate not wholly in one 
 county, city, borough, liberty, cinque port or place, the 
 same expression shall be construed to mean the sheriff 
 or clerk of the peace of any county, city, borough, 
 liberty, cinque port, or place where any part of such 
 lands shall be situate : 
 ' Justice ;" The word " justice" shall mean justice of the peace act- 
 
 ing for the county, city, borough, liberty, cinque poit, 
 or place where the matter requiring the cognizance of 
 any such justice shall arise, and who shall not be in- 
 terested in the matter ; and where such matter shall 
 arise in respect of lands, being the property of one and 
 the same party, situate not wholly in any one countj', 
 city, borough, liberty, cinque port or place, shall mean 
 a justice acting for the count)^, citj', borough, liberty, 
 cinque port, or place where any part of such lands shall 
 be situate, and who shall not be interested in such 
 matter ; and where any matter shall be authorized or 
 required to be done by two justices, the expression 
 ^Twojos- " two justices" shall be understood to mean two jus- 
 
 "^**' tices assembled and acting togetlier : 
 
 'Owner;" Where under the provisions of this or the special act any 
 
 notice shall be required to be given to tlie owner of any 
 lands, or where any act shall be authorized or required 
 to be done with the consent of any such owner, the 
 word " owner" shall be understood to mean any per- 
 son or corporation who, under the provisions of this or 
 the special act, or any act incorporated therewith, 
 would be enabled to sell and convey lands to the com- 
 pany : 
 'the com- The expression "the company" shall mean the company 
 
 3any ;" q^ party which shall be authorized by the special act to 
 
 construct the railway : 
 ' the rail- The expression " the railway" shall mean the railway and 
 
 "'y'' works by the special act authorized to be constructed: 
 
 « Board of The expression " the board of trade" shall mean the lords 
 
 Tade;" of the committee of her Majesty's Privy Council aj)- 
 
 pointed for trade and foreign plantations: 
 ' the bank;" The expression " the bank" shall mean the Bank of Eng- 
 land, where the same shall relate to monies to be paid 
 or deposited in respect of lands situate in England ; and 
 shall mean the Bank of Ireland where the same shall
 
 8 Vict. c. 20 — Railways Clauses. clix 
 
 relate to monies to be paid or deposited in respect of 
 lands situate in Ireland : 
 
 The expression " turnpike road" shall, when applied to " Turnpike 
 any road in Ireland, include any road upon which her T*"''!'." '■■*" 
 Majesty's mails are or shall be carried in mail car- ^" ' 
 riages; or such other roads as the commissioners of 
 public works in Ireland shall consider to require arches 
 of greater width or height than by this act is requii-ed 
 for public carriage roads : 
 
 The expression " surveyor," applied to a road or high- " Surveyor," 
 way, shall, as to railways in Ireland, include the countv ^''^'aad ; 
 surveyor : 
 
 The expression "overseers of the poor," when applied to "Overseers 
 Ireland, shall include the poor law guardians of the ,! 'i*"^ poor," 
 electoral division and the clerk of the guardians of the 
 union through which such railway may pass : 
 
 4. And be it enacted, that in citing this act in other acts Short title of 
 of parliament and in legal instruments, it shall be sufficient ''"' ^*^'" 
 
 to use the expression " the Railways Clauses Consolidation 
 Act, 1845." 
 
 5. And whereas it may be convenient, in some cases, to Form in 
 incorporate with acts hereafter to be passed some ijortion "'"<='' P""^: 
 
 i^,., .. ni- 1-1 I' ' 1 lions of this 
 
 only 01 the provisions ot this act ; be it therefore enacted, act may be 
 that for the purpose of making any such incorporation, it incorporated 
 shall be sufficient in any such act to enact tliat the clauses " 
 of this act with respect to the matter so proposed to be in- 
 corporated (describing such matter as it is described in this 
 act, in the words introductory to the enactment with respect 
 to such matter,) shall be incorporated with such act, and 
 thei-eupon all the clauses and provisions of this act with re- 
 spect to the matter so incorporated shall, save so far as they 
 shall be expressl}' varied or excepted by such act, fonn part 
 of such act, and such act shall be construed as if the sub- 
 stance of such clauses and provisions were set forth therein 
 ■with reference to the matter to which such act shall relate. 
 
 And with respect to the construction («) of the railway Cnnslruc- 
 and the works connected therewith, be it enacted as follows: tion nJ'Rail- 
 
 6. In exercising the power given to the company by the way. 
 special act, to construct the railway, and to take lands for J^^^g consimc- 
 that purpose, the company shall be subject to the provi- lion «( lUe ^^^ 
 sions and restrictions contained in this act and in the said ['',[''j,!l.\ ,„ ,1,^. 
 Lands Clauses Consolidation Act; and the company shall provihi..n» oi 
 make to the owners and occupiers of and all other parties "•'' *=' *'"' 
 
 (a) See Treat, ante, p. 296.
 
 Appendix — Statutes. 
 
 s interested in any lands taken or used for the pui-poses of 
 lauses Con- the railway, or injuriously affected by the construction 
 Act/'"*" thereof, full compensation for the value of the lands so 
 taken or used, and for all damage sustained by such o\vners, 
 occupiers, and other parties, by reason of the exercise, as 
 regards such lands, of the powers by this or the special act, 
 or any act incorporated therewith, vested in the company; 
 and, except where otherwise provided by this or the spe- 
 cial act, the amount of such compensation shall be ascer- 
 tained and determined in the manner provided by the said 
 Lands Clauses Consolidation Act for determining ques- 
 tions of compensation with I'egard to lands purchased or 
 taken under the pro\'isions thereof; and all the provisions 
 of the said last-mentioned act shall be applicable to de- 
 termining the amount of any such compensation, and to 
 enforcing the payment or other satisfaction thereof. 
 Errors and "< • If ^"^Y omission, mis-statement, or erroneous descrip- 
 
 oinissions in tiou shall have been made of any lands, or of the owners, 
 correc'ed'^ lessees, or occupiers of any lands, described on the plans 
 or books of reference mentioned in the special act, or in 
 the schedule to the special act, it shall be lawful for the 
 company, after giving ten days notice to the owners of the 
 lands affected by such proposed correction, to apply to 
 two justices for the correction thereof; and if it shall ap- 
 pear to such justices that such omission, mis-statement, or 
 erroneous description arose from mistake, they shall certify 
 the same accordingly, and thej' shall in such certificate 
 state the particulars of any such omission, and in what 
 respect any such matter shall have been mis-stated or 
 erroneously described; and such certificate shall be de- 
 posited with the clei'ks of the peace of the several counties 
 in which the lands affected thereby shall be situate, and 
 shall also be deposited with the parish clerks of the several 
 parishes in England, and with tlie postmasters of the post 
 towns in or nearest to such parishes in Ireland, in which 
 the lands affected thereby shall be situate ; and such cer- 
 tificate shall be kept by such clerks of the peace, parish 
 clerks, and postmasters respectively along with the other 
 documents to which they relate; and thereupon such plan, 
 book of reference, or schedule shall be deemed to be cor- 
 rected according to such certificate ; and it shall be lawful 
 for tlie company to make the works in accordance with 
 such certificate. («) 
 
 (a) As to effect, &c. of certificate, under prior acts, see 
 Treatise, p. 76.
 
 8 Vict. c. 2Q— Railways Clauses. clxi 
 
 8. It shall not be lawful for the company to proceed in Works not to 
 the execution of the railway, unless they shall have pre- '"' proceeded 
 vipusly to the commencement of such work deposited ^i'nVof'all 
 ■with the clerks of the peace of the several counties in or alierationsau- 
 through which the railway is intended to pass a plan and """'i^^'' ^v 
 section of all such alterations from the original plan and UaveT-en'de- 
 section as shall have been approved of by parliament, on pos'ted. 
 
 the same scale and containing the same particulars as the 
 original plan and section of the railway, and shall also 
 have deposited with the clerks of the several parishes in 
 England, and the postmasters of the post towns in or 
 nearest to such parishes in Ireland, in or through which 
 such alterations shall have been authorized to be made, 
 copies or extracts of or from such plans and sections as 
 shall relate to such parishes respectively. 
 
 9. The said clerks of the peace, parish clerks, and post- Clerks of the 
 masters shall receive the said plans and sections of altera- P<^='<=.^' *"=• '» 
 tions, and copies and extracts thereof respectively, and of alterations, 
 shall retain the same, as well as the said original plans a°<' a"ow in- 
 and sections, and shall permit all persons interested to 'P^*^"""- 
 inspect any of the documents aforesaid, and to make copies 
 
 and extracts of and from the same, in the like manner, and 
 upon the like terms, and under the like penalty for de- 
 fault, as is provided in the case of the original plans and 
 sections by an act passed in the first year of the reign of 
 her present majesty, intituled " An Act to compel Clerks 7 will. 4 & 1 
 of the Peace for Counties and other Persons to take the Vict. c. 83. 
 Custody of such Documents as shall be directed to be de- 
 posited with them under the Standing Orders of either 
 House of Parliament." 
 
 10. True copies of the said plans and books of reference, Copies of 
 or of any alteration or con-ection thereof, or extract there- ^If "'"idtnce" 
 from, certified by any such clerk of the peace, which certifi- 
 cate such clerk of the peace shall give to all parties inte- 
 rested, when required, shall be received in all courts of 
 
 justice or elsewhere as evidence of the contents thereof. 
 
 11. In making the railway it shall not be lawful for the Limiting dc- 
 company to deviate from the levels of the railway, as re- ^j_'J['»"|[™™ 
 ferred to the common datum line described in the section describe.! ,m 
 approved of by parliament, and as marked on the same, to "cctions, &c. 
 any extent exceeding in anyplace five (b) feet, or, in passing 
 through a town, village, street, or land continuously built 
 
 (h) As to operation of this provision see case of Cainbriflgc 
 and Lincoln Railway, post, Report of Proceedings of Commillce 
 on Group (X), App. II.
 
 clxii Apjiendix — Statutes^ 
 
 upon, two feet, without the pre\'ious consent m writing of 
 the owners and occupiers of the land in which such devi- 
 ation is intended to be made; or in case any street or 
 pubhc highway shall be affected by such deviation, then 
 the same shall not be made without the like consent of the 
 trustees or commissioners having the control of such street 
 or public highway, or, if there be no such trustees or com- 
 missioners, without the like consent of two or more justices 
 of the peace in petty sessions assembled for that purpose, 
 and acting for the district in which such street or public 
 highway may be situated, or without the like consent of 
 the commissioners for any public sewers, or the proprietors 
 of any canal, navigation, gas works, or waterworks affected 
 Proviso. by such deviation : provided always, that it shall be lawful 
 
 for the company to deviate from the said levels to a further 
 extent without such consent as aforesaid, by lowering solid 
 embankments or viaducts, provided that the requisite 
 height of headway as prescribed by act of parliament be 
 left for roads, streets, or canals passing under the same : 
 Proviso. provided also, that notice of every petty sessions to be 
 
 holden for the purpose of obtaining such consent of two 
 justices as is hereinbefore required shall, fourteen days 
 previous to the holding of such petty sessions, be given in 
 some newspaper circulating in the county, and also be 
 affixed upon the door of the parish church in which such 
 deviation or alteration is intended to be made, or if there 
 be no such church, some other place to which notices are 
 usually affixed. 
 Publicuotice 12. Before it shall be lawful for the company to make 
 prev^ioasTo ^"y greater deviation from the level than five feet, or, in 
 making any town, village, street, or land continuously built upon, 
 
 greater devia- two feet, after having obtained such consent as aforesaid, 
 it shall be incumbent on the company to give notice of 
 such intended deviation by pubhc advertisement, inserted 
 once at least in two newspapers, or twice at least in one 
 newspaper, circulating in the district or neighbourhood 
 where such deviation is intended to be made, three weeks 
 Power to the at least before commencing to make such deviation ; and 
 owners of ad- it shall be lawful for the owner of any lauds prejudicially 
 to appeaHo^ affected thereby, at any time before the commencement of 
 the Board of the making of such deviation, to apply to the board of 
 snch devl^'"'' ti^^de, after giving ten days notice to the company, to de- 
 tions. cide whether, having regard to the interests of such ap- 
 
 plicants, such proposed deviation is pi-oper to be made: 
 and it shall be lawful for the Board of Trade, if they think 
 fit, to decide such question accordingly, and by their cer- 
 tificate in writing either to disallow the making of such
 
 8 Vict. c. 20 — Railways Clauses. clxiii 
 
 deviation or to authorize the making thereof, either siniplv 
 or with any such modification as shall seem proper to the 
 Board of Trade ; and after any such certificate shall have 
 been given by the Board of Trade, it shall not be lawful for 
 the company to make such deviation, except in conformity 
 with such certificate. 
 
 13. Where in any place it is intended to carry the rail- Arches, tun- 
 way on an arch or arches or other viaduct, as marked on jj''*' ^i*^* '** 
 the said plan or section, the same shall be made accord- marke/on' 
 ingly; and where a tunnel is marked on the said plan or ''^posited 
 section as intended to be made at any place, the same shall ^ ^°^' 
 
 be made accordingly, unless the owners, lessees, and occu- 
 piers of the land in which such tunnel is intended to be 
 made shall consent that the same shall not be so made. 
 
 14. It shall not be lawful for the company to deviate Limiting de- 
 from or alter the gradients, curves, tunnels, or other engi- pJaJiiem/'^'"" 
 neering works described in the said plan or section, except curves, &c. 
 within the following limits, and under the following condi- 
 tions ; (that is to say,) 
 
 Subject to the above provisions in regard to altering 
 levels, it shall be lawful for the company to diminish 
 the inclination or gradients of the railway to any ex- 
 tent, and to increase the said inclination or gradients 
 as follows; (that is to say,) iii gradients of an inclina- 
 tion not exceeding one in a hundred, to any extent not 
 exceeding ten feet per mile, or to any further extent 
 which shall be certified by the Board of Trade to be 
 consistent with the public safety, and not prejudicial to 
 the public interest ; and in gradients of or exceeding 
 the inclination of one in a hundred, to any extent not 
 exceeding three feet per mile, or to any farther extent 
 which shall be so certified by the Board of Trade as 
 aforesaid : 
 
 It shall be lawful for the company to diminish the radius 
 of any curve described in the said plan to any extent 
 which shall leave a radius of not less than half a mile, 
 or to any further extent authorized by sucli certificate 
 as aforesaid from the Board of Trade : 
 
 It shall be lawful for the company to make a tunnel, not 
 marked on the said plan or section, instead of a cut- 
 ting, or a viaduct instead of a solid embankment, if 
 authorized by such certificate as aforesaid from the 
 Board of Trade. 
 
 15. It shall be lawful for the company to deviate from L:iicnl dcvi- 
 the line delineated on the plans so deposited, pmvidcd """""• 
 that no such deviation shall extend to a greater distance 
 
 than the limits of deviation delineated upon the said plans,
 
 clxiv 
 
 Works to be 
 executed. 
 
 Inclined 
 planes, &c. 
 
 Appendix — Statutes. 
 
 nor to a greater extent in passing through a town, village, 
 or lands continuously built upon than ten yards, or else- 
 where to a greater extent than one hundred yards from the 
 said line, and that the railway by means of such deviation 
 be not made to extend into the lands of any person, whe- 
 ther owner, lessee, or occupier, whose name is not men- 
 tioned in the books of reference, without the previous 
 consent in writing of such person, unless the name of such 
 person shall have been omitted by mistake, and the fact 
 that such omission proceeded from mistake shall have been 
 certified in manner herein or in the special act provided 
 for in cases of unintentional errors in the said books of re- 
 ference, (h) 
 
 \6. Subject to the provisions and restrictions in this and 
 the special act, and any act incoi'porated therewith, it shall 
 be lawful for the company, for the purpose of constructing 
 the railway, or the accommodation works connected there- 
 with, hereinafter mentioned, to execute any of the following 
 works ; (that is to say,) 
 
 They may make or construct in, upon, across, under, or 
 over any lands, or any streets, hills, valleys, roads, 
 railroads, or tramroads, rivers, canals, brooks, streams, 
 or other waters, within the lands described in the said 
 plans, or mentioned in the said books of reference or 
 any correction thereof, such temporary or permanent 
 inclined planes, tunnels, embankments, aqueducts, 
 bridges, roads, ways, passages, conduits, drains, piers, 
 arches, cuttings, and fences as they think proper ; 
 They may alter the course of any rivers not navigable, 
 brooks, streams, or watercourses, and of any branches 
 of navigable rivers, such branches not being them- 
 selves navigable, within such lands, for the purpose 
 of constructing and maintaining tunnels, bridges, pas- 
 sages, or other works over or under the same, and 
 divert or alter, as well temporarily as permanently, 
 the course of any such rivers or streams of water, 
 roads, sti'eets, or ways, or raise or sink the level of any 
 such rivers or streams, roads, streets, or ways, in order 
 the more conveniently to carry the same over or 
 under or by the side of the railway, as they may think 
 proper ; 
 They may make drains or conduits into, through, or 
 under any lands adjoining the railway, for the pur- 
 pose of conveying water from or to the railway ; 
 They may erect and construct such houses, warehouses. 
 
 (ft) As to how deviations to be measured, &c. see Treatise, p. 78.
 
 8 Fict. c. 20 — Railways Clauses. clxv 
 
 offices, and other buildings, yards, stations, wharfs, 
 
 engines, machinery, apparatus, and other works and 
 
 conveniences as they think proper ; 
 They may from time to time alter, repair, or discontinue Alterations 
 
 the before-mentioned works, or any of them, and sub- ^""^ ""'P*'"- 
 
 stitute others in their stead ; and 
 They may do all other acts necessary for making, main- General 
 
 taining, altering, or repairing, and using the railway: P°^^''- 
 Provided always, that in the exercise of the powers by Proviso as to 
 this or the special act granted, the company shall do as <laniages. 
 little damage as can be, and shall make full satisfaction in 
 manner herein and in the special act, and any act incor- 
 porated therewith, provided, to all parties interested, for 
 all damage by them sustained by reason of the exercise of 
 such powei-s. (c) 
 
 17. It shall not be lawful for the company to construct Works below 
 
 on the shore of the sea, or of any creek, bay, arm of the t'gh water 
 
 . ,, • • ,• ,1 -ii 1 mark not to 
 
 sea, or navigable river communicating tnerewitn, where be executed 
 
 and so far up the same as the tide flows and reflows, any without the 
 work, or to construct any railway or bridge across any Lo1-dTof"tl!e^ 
 creek, bay, arm of the sea, or navigable river, where and so Admiralty, 
 far up the same as the tide flows and reflows, without the 
 previous consent of her majesty, her heirs and successors, 
 to be signified in writing under the hands of two of the 
 commissioners of her majesty's woods, forests, land reve- 
 nues, works, and buildings, and of the lord high admiral 
 of the United Kingdom of Great Britain and Ireland, or 
 the commissioners for executing the office of lord high 
 admiral aforesaid for the time being, to be signified in 
 writing under the hand of the secretary of the admiralty, 
 and then only according to such plan and under such re- 
 strictions and regulations as the said commissioners of her 
 majesty's woods, forests, land revenues, works, and build- 
 ings, and the said lord high admiral, or the said commis- 
 sioners, may approve of, such approval being signified as 
 last aforesaid ; and where any such work, railway, or bridge 
 shall have been constructed, it shall not be lawful for the 
 company at any time to alter or extend the same without 
 obtaining, previously to making any such alteration or 
 extension, the like consents or approvals ; and if any such 
 work, railway, or bridge shall be commenced or completed 
 contrary to the provisions of this act, it shall be lawful for 
 the said commissioners of her majesty's woods, forests, 
 land revenues, works, and buildings, or the said lord lugh 
 (c) As to operation of above powers, see Treatise, p. 85 ot seq. 
 As to operation of first clause of proviso as to damage, see Irea- 
 ise, p. 90.
 
 clxvi Appendix — Statutes. 
 
 admiral, or the said commissioners for executing the office 
 of lord high admiral, to abate and remove the same, and 
 to restore the site thereof to its former condition, at the cost 
 and charge of the company ; and the amount thereof may 
 be recovered in the same manner as a penalty is recoverable 
 against the company. 
 Alteration of ] 8. It shall be lawful for the company, for the purpose 
 T'T &c ^""^ ^^ constructing the railway, to raise, sink, or otherwise 
 alter the position of any of the watercourses, water pipes, 
 or gas pipes belonging to any of the houses adjoining or 
 near to the railway, and also the mains and other pipes 
 laid down by any company or society who may furnish 
 the inhabitants of such houses or places with water or 
 gas, and also to remove all other obsh-uctions to such con- 
 struction, so as the same respectively be done with as little 
 detriment and inconvenience to such company, society, or 
 inhabitants as the circumstances will admit, and be done 
 under the superintendence of the company to which such 
 water pipes or gas pipes belong, and of the several com- 
 missioners or trustees, or persons having control of the 
 pavements, sewers, roads, streets, highways, lanes, and 
 other public passages and places within the pai'ish or dis- 
 trict where such mains, pipes, or obstructions shall be 
 situate, or of their surveyor, if thej"^ or he think fit to 
 attend, after receiving not less than forty-eight hours notice 
 for that purpose. 
 Company not 19. Provided alwaj's, that it shall not be lawful for the 
 to rlisturi) comnanv to remove or displace any of the mains or pipes 
 
 pipes until , , ' r ■ •■NT 1 A 
 
 they have laid (other than private service pipesj, syphons, plugs, or other 
 down others, works belonging to any such company or society, or to do 
 any thing to impede the passage of water or gas into or 
 through such mains or pipes, until good and sufficient 
 mains or pipes, syphons, plugs, and all other works ne- 
 cessary or proper for continuing the supply of water or 
 gas as sufficiently as the same was supplied by the mains 
 or pipes proposed to be removed or displaced, shall, at 
 the expense of the company, have been first made and 
 laid down in lieu thereof, and be ready for use in a posi- 
 tion as little varying from that of the pipes or mains pro- 
 posed to be removed or displaced as may be consistent 
 with the construction of the railway, and to the satisfaction 
 of the surveyor or engineer of such water or gas company 
 or society, or, in case of disagreement between sucli sur- 
 veyor or engineer and the company, as a justice shall 
 direct. 
 Pipes not to 20. It shall not be lawful for the company to lay down 
 
 be laid con- ^ ^ "^
 
 8 Vict. c. 20 — Railways Clauses. clxvii 
 
 any such pipes contrary to the regulations of any act of trary lo any 
 parliament relating to such water or gas company or so- ^'^•' '""^ «'|h- 
 ciety, or to cause any road to be lowered for the purposes lu^/facrroad 
 of the railway, without leaving a covering of not less than lo be retained, 
 eighteen inches from the surface of the road over such 
 mains or pipes. 
 
 21. The company shall make good all damage done to Company to 
 the property of the water or gas company or society, by '"'*''*-' g"""* »" 
 the disturbance thereof, and shall make full compensation ^'^^^^' 
 
 to all parties for any loss or damage which they may sus- 
 tain by reason of any interference with the mains, pipes, or 
 works of such water or gas company or society, or with the 
 private service pipes of any person supplied by them with 
 water. 
 
 22. If it shall be necessary to construct the railway or When railway 
 any of the works over any mains or pipes of any such com!fa*n'"{'^'' 
 water or gas company or society, the company shall, at make a cui- 
 their own expense, construct and maintain a good and suffi- ^•^'■'• 
 
 cient culvert over such main or pipe, so as to leave the same 
 accessible for the purpose of repairs. 
 
 23. Ifby any such operations as aforesaid the company I'enalty for 
 shall interrupt the supply of any water or gas they shall supply of ^gas 
 forfeit twenty pounds for every day that such supply shall or waier. 
 
 be so interrupted, and such penalty shall be appropriated 
 to the benefit of the poor of the parish in which such ob- 
 struction shall occur, in such manner as the overseers of the 
 poor of the parish shall direct. 
 
 24. If any person wilfully obstruct any person acting Penalty for 
 under the authority of the company in the lawful exercise of "ons'irucaon 
 their jjower, in setting out the line of the railwa}', or pull of railway, 
 up or remove any poles or stakes driven into the ground 
 
 for the purpose of so setting out the line of the raihva}', or 
 deface or destroy any marks made for the same purpose, 
 he shall forfeit a sum not exceeding five pounds for every 
 such offence. 
 
 And whereas there are large tracts of land in Ireland Dminaf^e nf 
 subject to flood and injury by water, and the rivers, Landt. 
 streams, and watercourses are in many places obstructed 
 by shoals, insufficient bridges, culverts, weirs, and other 
 works, whereby the waters thereof are elevated above their 
 natural level: And whereas an act of parliament was 
 passed in the second year of the reign of his late Majesty 
 King William the Fourth, intituled " An Act to empower ^ &^^ Will, a, 
 Landed Proprietors in Ireland to sink, embank, and re- 
 move Obstructions in Rivers;" And whereas another act
 
 clxviii Appendix — Statutes. 
 
 was passed in the sixth year of the reign of her present 
 5 & 6 Vict. c. Majesty, intituled " An Act to promote the Drainage of 
 '^' Lands, and Improvement of Navigation and Water Power 
 
 in connection with such Drainage, in Ireland;" and by 
 the said last-mentioned act, public commissioners were 
 appointed to carry the said last-recited act into execution : 
 And whereas it is essential, for carrying into effect the 
 purposes of the said acts, and for the improvement of agi-i- 
 culture, that ample provision be made in all railway works 
 in Ireland, for the free and uninterrupted passage of the 
 waters at such level as will be sufficient not only for the 
 present but all future discharge of the waters from lands 
 crossed by or being on either side of such works, and that 
 the bridges of railways crossing all watercourses, rivers, 
 lakes, or estuaries which are or hereafter may be made 
 navigable, shall be so constructed as to admit of the com- 
 modious navigation of the same : therefore, with respect to 
 the provision to be made for the drainage of land in li-eland 
 which may be crossed by the railway, and for the protec- 
 tion of the navigation connected therewith, be it enacted 
 as follows: 
 The company 25. If the Special act shall authorize the constiuction of 
 from "™^'" a railway in Ireland, the company shall and they are hei-eby 
 to the dr^in- required, from time to time, before proceeding to construct 
 age commis- gj^y portion of the railway, to submit to the commissioners 
 laod'^plaiis,'^^" acting in execution of the said act of the sixth year of her 
 &c. oi the present majesty, or any act amending the same, such 
 portion of the pj^j^g sections, and surveys as shall be necessary to enable 
 
 railwaywhich r '., '. . ^ j -j xi i j 
 
 they are about the said commissioners to decide upon the number and 
 to execute. adequacy of the waterways of all bridges, culverts, tunnels, 
 watercourses, and other works across the line of such por- 
 tion as aforesaid of the railway, for the free and uninter- 
 rupted discharge of the waters from all lands crossed by or 
 lying on either side of or near the railway, at such level as 
 shall in the opinion of the said commissioners be sufficient 
 for the present and prospective drainage and improvement 
 of such lands, and (in cases of rivers, lakes, estuaries, or 
 watercourses, which are now or may be capable of being 
 made navigable) upon the height and adequacy of all 
 bridges and works crossing the same, for the commodious 
 navigation thereof. 
 Soch commis- 26. The said commissioners shall and they are hereby 
 sioners to in- required, without any unnecessary delay, to investigate, by 
 report^on ^ihe such means as to them shall seem fit, the adequacy of all 
 works neces- such works for such purjjoses as aforesaid, and to decide 
 sary for drain- ^^^ certify, by a writing under their hands, or the hands of
 
 8 Fict. c. 20 — Railrvays Clauses. clxix 
 
 any two of them, the number, situation, and least possible 
 dimensions as to breadth, depth, and height of the several 
 openings of such bridges, culverts, tunnels, or other works 
 connected with such portion of the railway as aforesaid, 
 which shall be necessary for the passage of water, or for 
 navigation under or across such railway ; and it shall not 
 be lawful for the company to proceed with the execution 
 of any of the works connected with any portion of the i-ail- 
 way without having first obtained such a certificate as afore- 
 said i-especting such portion of the railway, under the 
 hands of the said commissioners or any two of them, as 
 aforesaid ; nor shall the company be at liberty to deviate 
 from such certificate in respect to such works, nor to exe- 
 cute the same otherwise than in conformity therewith, with- 
 out the previous approbation in writing of the said com- 
 missioners. 
 
 27. It shall be lawful for the said commissioners to Summary ap- 
 
 apply by petition in a summary way to the Court of fhe'^Coun'of 
 
 Chancery, complaining of any omission on the part of the Chancery to 
 
 company to submit such plans, sections, and surveys to the '^'"'<"'ce the 
 
 . ,^ •' . . n . -. ,. . , . . " , execution of 
 
 said commissioners as atoresaid, or ot the omission to con- such works. 
 
 struct any such bridge, culvert, tunnel, or otlier works for 
 the passage of water, in such manner as shall be so certified 
 by the said commissioners, and thereupon it shall be lawful 
 for the said court to direct such works to be made or con- 
 structed by the company in such manner as shall be 
 conformable to the certificate of tlie said commissioners, 
 and to the said court shall seem necessary or proper, and 
 to make from time to time such further or other order 
 for restraining the company or any other persons from pro- 
 ceeding with any of the works connected with such 
 portion of railway, except in conformity with the certi- 
 ficate of tlie said commissioners, and to issue any v/rit of 
 injunction for the purpose aforesaid; and such court shall 
 have power to award costs to be paid by such company or 
 persons. 
 
 28. Nothing in this or the special act shall extend or be Saving of the 
 construed to prejudice or aftect the powers or authorities of ,1^' J.^^^com 
 the commissioners acting in execution of the said act of the missioners. 
 sixth year of her present majesty, but all such powers shall 
 
 be in full force as to the formation of any cut, river, or 
 ■watercourse across the railway, but such powers sliall not be 
 exercised so as to prevent or obstruct the working or using 
 of the railway. 
 
 29. And whereas it is expedient to encourage the csta- thc dr-iinaRe 
 blishment of manufactories to be worked by water power in ^°™'; j'^."^''^ 
 
 H H
 
 dxx Appendix — Statutes. 
 
 to have power Ireland ; be it therefore enacted, that whenever it may 
 qaeslious as ^e requisite for the formation of a watercourse for manu- 
 to the execu- facturing purposes to construct an arch, culvert, tunnel, 
 !!^°t^''lr°'^''.^' or watercourse beneath, or an aqueduct above any rail- 
 
 or to execute -tii ii t/t« ini • 
 
 works for car- way m Ireland, and that dmerences shall have arisen 
 rying water- between the directors of such railway and the person in- 
 the raiiVay^^ t^^^sted in obtaining the water power, either as to the 
 manner in which such works shall be executed, or the 
 amount of compensation which should be paid, it shall be 
 lawful to refer the question in issue to the commissioners 
 acting under the said recited act of the fifth and sixth 
 years of the reign of her Majestj" Queen Victoria, and their 
 decision thereon shall be final and conclusive ; and if the 
 said commissioners shall be of opinion that the proposed 
 works can be executed without injurj^ to the railway, and 
 if they sliall think proper so to do, they may undertake 
 the execution of so much of the said works as shall be in 
 connection with such railway, at the expense of the parties 
 for whose benefit the watercourse shall be made, with 
 the same powers and authorities as are given by the said 
 act for the execution of any works for drainage. 
 
 Temporary And with respect to the temporary occupation of lands 
 
 Use of near the railway during the construction thereof, be it 
 
 Lands. enacted as follows : 
 
 Company 30. Subject to the provisions herein and in the special 
 
 may occupy j^^^ contained, it shall be lawful for the company, at any 
 
 lemporarily . ,. ' . . ,, . ■ ^ ■• i • i 
 
 private roads tmie bciore the expiration ot the period by the special act 
 within Jive limited for the completion of the railway, to enter upon 
 of "be'^r Jl?' ^ and use any existing private road, being a road gravelled 
 way. or formed with stones or other hard materials, and not 
 
 being an avenue or a planted or ornamental road, or an 
 approach to any mansion house, within the prescribed 
 limits, if any, or, if no limits be prescribed, not being 
 more than five hundred yards distant from the centre of 
 the railway as delineated on the plans ; but before the 
 company shall enter upon or use any such existing road 
 they shall give three weeks notice of their intention to the 
 owners and occupiers of such road, and of the lands over 
 which the same shall pass, and shall in such notice state 
 the time dm-ing which, and the purposes for which, they 
 intend to occupy such road, and shall pay to the owners 
 and occupiers of such road, and of the lands through 
 which the same shall pass, such compensation for the use 
 and occupation of such road, either in a gross sum of 
 money or by half-yearly instalments, as shall be agreed
 
 8 Vict. c. 20 — Railways Clauses. clxxi 
 
 upon between such owners and occupiers respectively and 
 the company, or in case they differ about the compensa- 
 tion the same shall be settled by two justices, in the same 
 manner as any compensation not exceeding- fifty pounds 
 is directed to be settled by the said Lands Clauses Con- 
 solidation Act. 
 
 31. It shall be lawful for the owners and occupiers of Power to 
 any such road, and of the lands over which the same owners aud 
 passes, within ten days after the service of the aforesaid road''a'nd* °^ 
 notice, by notice in writing to the company, to object to 'and to object 
 the company making use of such road, on the ground "'*'.°l''*''i, 
 
 1x11 1 ii 1 • 1 road SDOuUl 
 
 that other roads, sucli as the company are herembefore be taken, 
 authorized to use for the purposes aforesaid, or that some 
 public road, would be more fitting to be used for the 
 iame ; and upon the objection being so made such pro- 
 ceedings may be had as are hereinafter mentioned with 
 respect to lands temporarily occupied hj the company, in 
 respect of which three weeks notice is hereinafter re- 
 quired to be given, and in the same manner as if in the 
 provisions relative to such proceedings the word road or 
 roads, or the words road and the laud over wliich the 
 same passes, as the case may require, had been substi- 
 tuted in such provisions for the word lands. 
 
 32. Subject to the provisions herein and in tlie special Power to 
 act contained, it shall be lawful for the company, at any jf.l'rary "osjgs. 
 time before the expiration of the period by the special sion (a) of 
 act limited for the completion of the railway, without '"'"i. without 
 making any previous payment, tender, or deposit, to enter fJenr"/ ""^ 
 upon any lands within the prescribed limits, or, if no price, 
 limits be prescribed, not being more than two hundred 
 
 yards distant from the centre of the railway as delineated 
 on the plans, and not being a garden, orchard, or planta- 
 tion attached or belonging to a house, nor a park, itlanted 
 ^valk, avenue or ground ornamentally (b) planted, and 
 not being nearer to the mansion house of the oyiier of 
 any such lands than the prescribed distance, or if no dis- 
 tance be prescribed, then not nearer than five hundred 
 yards therefrom, and to occupy the said lands so long as 
 may be necessary for the construction or repair of that 
 portion of the railway, or of the accommodation works 
 
 (u) As to what held not a taking temporary possession of 
 land under prior act, see Innocent v. Koith Midland liaittvaii 
 Company, 1 Railw. Cas. 255 ; and I'reat. p. 167. 
 
 (b) See Stone v. Commercial Uuilway Company, 1 llailw. 
 Cas. 395 ; and Treat, ante, p. 1 12. 
 n Ji 2
 
 clxxii 
 
 Company to 
 give notice 
 previons to 
 SDch tempo- 
 rary posses- 
 sion. 
 
 Appendix — Statutes. 
 
 connected therewith, hereinafter mentioned, and to use 
 the same for any of the following purposes ; (that is to 
 say,) 
 
 For the purpose of taking earth or soil by side cuttings 
 therefrom ; 
 
 For the purpose of depositing spoil thereon ; 
 
 For the purpose of obtaining materials therefrom for the 
 construction or repair of the railway or such accom- 
 modation works as aforesaid : or 
 
 For the purpose of forming roads thereon to or from or 
 by the side of the railway ; 
 And in exercise of the powers aforesaid it shall be law- 
 ful for the company to deposit and also to manufacture 
 and work uj)on such lands materials of every kind used 
 in constructing the railway, and also to dig and take 
 from out of any such lands any clay, stone, gravel, sand, 
 or other things that may be found therein usefiil or proper 
 for constructing the railway or any such roads as afore- 
 said, and for the purposes aforesaid to erect thereon 
 workshops, sheds, and other buildings of a temporaiy 
 nature : provided always, that nothing in this act con- 
 tained shall exempt the company from an action for 
 nuisance or other injury, if any done, in the exercise of 
 the powers hereinbefore given, to the lands or habitations 
 of any party other than the party whose lands shall be 
 so taken or used for any of the purposes aforesaid : pro- 
 vided also, that no stone or slate quarry, brick field, or 
 other like place, which at the time of the passing of the 
 special act shall be commonly worked or used for getting 
 materials therefrom for the purpose of selling or disposing 
 of the same, shall be taken or used by the company, 
 either wholly or in part, for any of the purposes lastly 
 hereinbefore mentioned. 
 
 33. In case any such lands shall be required for spoil 
 banks or for side cuttings, or for obtaining materials for 
 the construction or repair of the railway, the company 
 shall before entering thereon (except in the case of acci- 
 dent to the railway requiring immediate (c) reparation) 
 give three weeks notice in writing to the owners and 
 occupiers of such lands of their intention to enter upon 
 the same for such purposes ; and in case the said lands 
 are required for any of the other purposes hereinbefore 
 mentioned, the company shall (except in the cases afore- 
 said) give ten days like notice thereof, and the company 
 
 (c) See 5 a 6 Vict. c. 55, s. 14 ; Treat, pp. 339, 340.
 
 8 Vict. c. 20 — Railways Clauses. clxxiii 
 
 shall in such notices respectively state the substance of 
 the provisions hereinafter contained respecting the rio-ht 
 of such owner or occupier to require the company to 
 purchase any such lands, or to receive compensation for 
 the temporary occupation thereof, as the case may be. 
 
 34. The said notice shall either be served personally on Service of 
 such owners and occupiers, or left at their last usual place "o'ices on 
 of abode, if any such can, after diligent inquiry, be found, occ" p?ers"of 
 and in case any such owner shall be absent from the united lands, 
 kingdom, or cannot be found after diligent inquiry, shall 
 also be left with the occupier of such lands, or, if there be 
 no such occupier, shall be affixed upon some conspicuous 
 part of such lands. 
 
 3-3. In any case in wdiich a notice of three Aveeks is Power to 
 liereinbefore required to be given, it shall be lawful for the owner to 
 owner or occupier of the lands therein referred to, within other'iands 
 ten days after the service of such notice, by notice in ou^ht to be 
 writing to the company, to object to the company making 'aken. 
 use of such lauds, either on the ground that the lands pro- 
 posed to be taken for the purposes aforesaid, or some part 
 thereof, or of the materials contained therein, are essential 
 to be retained by such owner, iu order to the beneficial 
 enjoyment of other neighbouring lands belonging to him, 
 or on the ground that other lands lying contiguous or 
 near to those proposed to be taken would be more fitting 
 to be used for such purposes by the company ; and upon 
 objection being so made such proceedings may be had as 
 hereinafter mentioned. 
 
 36. If the objection so made be on the ground that the Power to 
 lands proposed to be taken, or some part thereof, or of J"'° Jj"^'^'"^, 
 the materials contained therein, are essential to be retained ii.e lands and 
 by the owner in order to the beneficial enjoyment of other ™jj""^*|*^''*" 
 neighbouring lands belonging to him, it shall be lawful "°' 
 for any justice, on the application of such owner, to 
 summon the company to appear before two justices tit a 
 time and place to be named in the summons, such time 
 not being later than the expiration of the said twenty- 
 one days notice ; and on the appearance of tlie company, 
 or, in their absence, upon proof of due service of the 
 summons, it shall be lawful for sucli justices to inquire 
 into the truth of such ground of objection ; and if it ap- 
 pear to such justices that for some special reason, to be 
 stated in the order after mentioned, the lands so proposed 
 to be taken, or any part thereof, or of tlie materials con- 
 tained therein, are essential to be retained by tlie owner 
 of such lands in order to the beneficial enjoyment of other
 
 clxxiv 
 
 Appendix — Statutes. 
 
 neighbouring lands belonging to him, and ought not 
 therefore to be taken or used by the company, it shall be 
 lawful for such justices, by writing under their hands, to 
 order that the lands so proposed to be taken, or some part 
 thereof, or of the materials contained therein, to be speci- 
 fied in such order, shall not be taken or used by the com- 
 pany, and after service of such order on the company it 
 shall not be lawful for them to take or use, without the 
 previous consent in writing of the owner thereof, any of 
 the lands or materials whicli by such order they are 
 ordered not to take or use. 
 
 37. If the objection so made as aforesaid be on the 
 ground that other lands lying contiguous to those pro- 
 posed to be taken, and being sufficient in quantity, and 
 such as the company are hereinbefore authorized to use 
 for the purposes aforesaid, would be more fitting to be 
 used by the company, and if in such case the company 
 shall refuse to occupy such other lands in lieu of those 
 mentioned in the notice, it shall be lawful for any justice, 
 on the application of such owner or occupier, to summon 
 the company and the owners and occupiers of such other 
 lands to appear before two justices at a time and place to 
 be named in such summons, such time not being more 
 than fourteen days after such application nor less than 
 seven days from the service of such summons ; and on 
 the appearance of the parties, or, in the absence of anj' of 
 them, upon proof of due service of the summons, it shall 
 be lawful for such justices to determine summarily which 
 of the said lands shall be used by the company for the 
 purposes aforesaid, and to authorize the company to 
 occupy and use the same accordingly, 
 
 38. If in the case last mentioned it shall appear to sucli 
 justices, upon the inquiry before them, that the lands of 
 any other party not summoned before them, being sufli- 
 
 before them, cient in quantity, and such as the company are herein- 
 before authorized to take or use for the purposes aforesaid, 
 would be more fitting to be used by the company than 
 the lands of the person who shall have been so summoned 
 as aforesaid, it shall be lawful for the said justices to 
 adjourn such inquiry, and to summon sucli other person 
 to appear before them at any time, not being more than 
 fourteen days from such inquiry nor less than seven days 
 from the ser^'ice of such summons ; and on the appearance 
 of the parties, or, in the absence of any of them, on proof 
 of due service of the summons, it shall be lawful for sucli 
 justices to determine finally which lands shall be used for
 
 S Vict. c. 20— Railways Clauses. clxxv 
 
 the purposes aforesaid, aud to authorize the company to 
 occupy aud use the same accordingly. 
 
 39. Before entering, under the provisions hereinbefore The company 
 contained, upon any such lands as shall be required for ^° g'^« «"f«- 
 spoil banks or for side cuttings, or for obtaining materials qu'/ed '^" 
 or forming roads as aforesaid, the company shall, if re- 
 
 quired by the owner or occupier thereof, seven days at 
 least before the expiration of the notice to take such lauds 
 as hereinbefore mentioned, find two suflicient persons, to 
 be approved of by a justice, in case the parties differ, 
 who shall enter into a bond to such owner or occupier in 
 a penalty of such amount as shall be approved of by such 
 justice, in case the parties differ, conditioned for the pay- 
 ment of such compensation as may become payable in re- 
 spect of the same in manner herein mentioned. 
 
 40. Before the company shall use any such lands for Company to 
 
 any of the purposes aforesaid they shall, if required so to ?^Pf*i^,"** 
 J 1 J.1 • ii p , 1 ■. lands before 
 
 do by the owner or occupier thereof, separate the same by using them, 
 a sufficient fence from the lands adjoining thereto, with 
 such gates as may be required by the said owner or occu- 
 pier for the convenient occupation of such lands, aud 
 shall also, to all private roads used by them as aforesaid, 
 put up fences and gates in like manner, in aU cases where 
 the same may be necessary to prevent the straying of cattle 
 from or upon the lands traversed by such roads, and in 
 case of any difference between the owners or occupiers 
 of such roads aud lands and the company as to the neces- 
 sity for such fences and gates, such fences and gates as any 
 two magistrates shall deem necessary for the purposes 
 aforesaid, on application beuig made to them in like 
 manner as hereinbefore is provided in respect to the use 
 of such roads. 
 
 41 . That if any land shall be taken or used by the com- Lands taken 
 pany, under the provisions of this or the special act, for ,^ateri"ls? 
 the purpose of getting materials therefrom for the con- &c. to be' 
 sti-uction or repair of the railway, or the accommodation 5y,rveyo*or''' 
 works connected therewith, they shall Avork the same in owner may 
 such manner as the surveyor or agent of the owner of direct, 
 such land shall direct, or, in case of disagreement between 
 
 such surveyor or agent and the company, in such manner 
 as any justice shall direct, on the application of either 
 party, after notice of the hearing tlie application shall 
 have been given to the other party. 
 
 42. In all cases in whicli the company shall in exercise ,^,^;;7,;„°f 
 of the powers aforesaid enter upon any lands for the i)ur- c„n,pci com- 
 pose of making spoil banks or side cuttings thereon, or pany lo pur-
 
 clxxvi 
 
 chase lands 
 so tempora- 
 rily occnpied. 
 
 Compensa- 
 tion to be 
 made for 
 temporary 
 occupation. 
 
 /Appendix — Statutes. 
 
 for obtaining therefrom materials for the construction or 
 repair of the railway, it shall be lawful for the owners or 
 occupiers of such lands, or parties having such estates 
 or interests therein as, under the pro^asions in the said 
 Lands Clauses Consolidation Act mentioned, would 
 enable them to sell or convej" lands to the company, at 
 any time during the possession of any such lands by the 
 company, and before such owners or occupiers shall have 
 accepted compensation from the company in respect of 
 such temporary" occupation, to serve a notice in writing 
 on the company requiring them to purchase the said 
 lands, or the estates and interests therein capable of being 
 sold and conveyed by them respectively ; and in such 
 notice such owners or occupiers shall set forth the parti- 
 culars of such their estate or interest in such lands, and 
 the amount of their claim in respect thereof; and the 
 company shall thereupon be bound to purchase the said 
 lauds, or the estate and interest therein capable of being 
 sold and conveyed by the parties serving such notice. 
 
 43. In any of the cases aforesaid, where the company 
 shall not be required to purchase such lands, and in all 
 other cases where they shall take temporary" possession of 
 lands by virtue of the powers herein or in the special act 
 granted, it shall be incumbent on the company, within 
 one month after their entry upon such lands, upon being 
 required so to do, to pay to the occupier of the said lands 
 the value of any crop or dressing that may be thereon, 
 as well as full compensation for any other damage of a 
 temporary nature which he may sustain by reason of 
 their so taking possession of his lands, and shall also from 
 time to time during thefr occupation of the said lands 
 pay half-yearly to such occupier or to the owner of the 
 lands, as the case may require, a rent to be fixed by two 
 justices, in case the parties differ, and shall also within 
 six months after they shall have ceased to occupy the 
 said lands, and not later than six months after the expir- 
 ation of the time by the special act limited for the com- 
 pletion of the railway, pay to such oAvner and occupier, 
 or deposit in the bank for the benefit of all parties in- 
 terested, as the case may require, compensation for aU 
 permanent or other loss, damage, or injury that raaj- 
 have been sustained by them by reason of the exercise, 
 as regards the said lands, of the powers herein or in the 
 special act granted, including the full value of all claj-, 
 stone, gi-avel, sand, and other things taken from such 
 lands.
 
 8 Vict. c. ^0— Railways Clauses. clxxvii 
 
 44. The amount and application of the purchase money Comoensa 
 and other compensation payable by the company in any 'i°° 'o t>e 
 of the cases aforesaid shall be determined in the manner *^<=«'''»''>e<i 
 provided by the said Lands Clauses Consolidation Act UndYciauses 
 tor determining the amount and application of the com- ="='• 
 pensation to be paid for lands taken under the provisions 
 thereof. 
 
 45. And be it enacted, that it shall be lawful for the 
 company, in addition to the lands authorized to be com- jj^'--^"'', 
 pulsorily taken by them under the powers of this or the "^'''f' """' 
 special act, to contract with any party willing to sell tlie Land to be 
 same for the purchase of any land adjoining or near to t'*''^" ''"'■ 
 the railway, not exceeding in tlie whole the prescribed a,tlions"lc 
 number of acres for extraordinary purposes ; (that is to ' ' 
 say,) 
 
 For the purpose of making and providing additional 
 stations, yards, wharfs, and places for the accom- 
 modation of passengers, and for receiving, deposit- 
 ing, and loading or unloading goods or cattle to be 
 conveyed upon the railway, and for the erection of 
 weighing macliines, toll houses, offices, warehouses, 
 and other buildings and conveniences : 
 
 For the purpose of making convenient roads or ways 
 to the railway, or any other purpose which may be 
 requisite or convenient for the formation or use of 
 the railway. 
 
 And with respect to the crossing of roads, or other in- Crossing of' 
 terference therewitli, be it enacted as follows : Roads and 
 
 46. If the line of the railway cross any turnpike road Construe- 
 or public highway, tlien (except where otlierwise pro- ''"'• °f 
 vided by the special act) either such road shall be carried ■^'■'''^es. 
 over the railway, or the railway shall be carried over Crossing of 
 such road, by means of a bridge, of the heiglit and widtli '''""''• 
 and with the ascent or descent by this or tiie special act 
 
 in that behalf provided : and sucli bridge, with tlie im- 
 mediate approaches, and all otlier necessary works con- 
 nected therev/ith, sliall be executed and at all times 
 thereafter maintained at the expense of tlie company : 
 provided always, tliat, with the consent of two or more 
 justices in petty sessions, as after-mentioned, it shall be 
 lawful for the company to carry the mil way across any 
 highway, other than a public carriage road, on the 
 level, (d) 
 
 (d) As to effect of provision^ touching cro'^sing of roads, &c. 
 in prior acts, see Treatise, pp. 95, et seq. 
 H 11
 
 clxxviii 
 
 Provision in 
 cases where 
 roads are 
 crossed on a 
 level. 
 
 As to crossing 
 of turnpike 
 roads adjoin- 
 ing stations. 
 
 Constrnctiou 
 of bridges 
 over roads. 
 
 Appendix — Statutes. 
 
 47. If the ruihvay cross any turnpike road or public 
 carriage road on a level, the company shall erect and at 
 all times maintain good and sufficient gates across such 
 road, on each side of the railway where the same shall 
 communicate therewith, and shall employ proper persons 
 to open and shut such gates ; and such gates shall be 
 kept constantly closed across such road on both sides of 
 the railway, except during the time when horses, cattle, 
 carts, or carriages passing along the same shall have to 
 cross sucii railway ; and such gates shall be of such di- 
 mensions and so constructed as when closed to fence in 
 the railway, and prevent cattle or horses passing along 
 the road from entering upon the railway ; and the person 
 intrusted with the care of such gates shall cause the same 
 to be closed as soon as such horses, cattle, carts, or car- 
 riages shall have passed through the same, under a pe- 
 nalty of forty shillings for every default therein : jiro- 
 vided always, that it shall be lawful for the board of 
 trade, in any case in which they are satisfied that it will 
 be more conducive to the public safety that the gates on 
 any level crossing over any such road should be kept 
 closed across the railway, to order that such gates shall 
 be kept so closed, instead of across the road, and in such 
 case such gates shall be kept constantly closed across the 
 railway, except when engines or carriages passing along 
 the railway shall have occasion to cross such road, in 
 the same manner and under the like penalty as above 
 directed with respect to the gates being kept closed 
 across the road, (e) 
 
 48. Where the railway crosses any turnpike road on a 
 level adjoining to a station, all trains on a railway shall 
 be made to slacken their speed before arriving at such 
 turnpike road, and shall not cross the same at anj'^ greater 
 rate of speed than four miles an hour ; and the company 
 shall be subject to all such rules and regulations with re- 
 gard to such crossings as maj' from time to time be made 
 by the board of trade. 
 
 49. Every bridge to be erected for the purpose of car- 
 rying the railway over any road shall (except where 
 otherwise provided by the special act) be built in con- 
 formity with the following regulations ; (that is to say), 
 
 The width of the arch shall be such as to leave there- 
 under a clear sjiace of not less than thirty-five feet 
 if the arch be over a turnpike road, and of twent\- 
 
 (e) See 5 & 6 Vict. c. 55, s. 9, ante, App. 8.
 
 I 
 
 8 Vict. c. 20. — Railways Clauses. clxxix 
 
 five feet if over a public carriage road, and of twelve 
 feet if over a private road : 
 
 The clear height of the arch from the surface of the 
 road shall not be less than sixteen feet for a space of 
 twelve feet if the arch be over a turnpike road and 
 fifteen feet for a space of ten feet if over a public 
 carriage road ; and in each of sucli cases the clear 
 height at the springing of the arch shall not be legs 
 than twelve feet : 
 
 The clear height of the arch for a space of nine feet 
 shall not be less than fourteen feet over a private 
 carriage road : 
 
 The descent made in the road in order to carry the 
 same under the bridge shall not be more than one 
 foot in thirty feet if the bridge be over a turnpike 
 road, one foot in twenty feet if over a public car- 
 riage road, and one foot in sixteen feet if over a 
 private carriage road, not being a tramroad or rail- 
 road, or if the same be a tramroad or railroad the 
 descent shall not be greater than the prescribed rate 
 of inclination, and if no rate be prescribed the same 
 shall not be greater than as it existed at tlie passing 
 of the special act. (/) 
 
 50. Every bridge erected for carrying any road over Construction 
 the railway shall (except as otherwise provided by the °(,e''i"ranway 
 special act) be built in conformity with the following- 
 regulations ; (that is to say). 
 
 There shall be a good and sufficient fence on each side 
 of the bridge of not less height than four i'eet, and 
 on each side of the immediate approaches of such 
 bridge of not less than three feet : 
 
 The road over the bridge sliall have a clear space be- 
 tween the fences thereof of thirty-five feet if tlie 
 
 - road be a turnpike road, and twentj^-five feet if a 
 public carriage road, and twelve feet if a private 
 road : 
 
 The ascent shall not be more than one foot in thirty 
 feet if the road be a turnpike road, one foot in 
 twenty feet if a public carriage road, and one foot 
 in sixteen feet if a private carriage road, not being 
 a tramroad or railroad, or if the same bt; a tramroad 
 or railroad the ascent sliall not be greater than tlie 
 
 (/ ) What is meant by turnpike road, see 'J'reatise, p. 1 09 ; also 
 that the term "bridge" does not include the approaches to 
 bridge, see Treatise, p. 107,
 
 clxxx 
 
 Tbe width of 
 the bridges 
 need not ex- 
 ceed tiie 
 •width of the 
 road in cer. 
 tain cases. 
 
 Existing 
 inclinations 
 of roads 
 crossed or 
 diverted need 
 not be im- 
 proved. 
 
 Before 
 roads inter- 
 fered with, 
 others to be 
 substituted. 
 
 Appendix — Statutes. 
 
 prescribed rate of inclination, and if no rate be pre- 
 scribed the same shall not be greater than as it 
 existed at the passing of the special act. 
 
 51. Provided always, that in all cases where the 
 average available width for the passage of carriages of 
 any existing roads within fifty yards of the points of 
 crossing the same is less than the width herein-before 
 prescribed for bridges over or under tlie railway, the 
 width of such bridges need not be greater than such 
 average available width of such roads, but so neverthe- 
 less that such bridges be not of less width, in the case of 
 a turnpike road or public carriage road, than twenty 
 feet : provided also, that if at auy time after the con- 
 struction of the railway the average available width of 
 any such road shall be increased beyond the width of 
 such bridge on either side thereof, the company shall be 
 bound, at their own expense, to increase the width of the 
 said bridge to such an extent as they may be required by 
 the trustees or surveyors of such road, uot exceeding the 
 Avidth of such road as so widened, or the maximum width 
 herein or in the special act prescribed for a bridge in the 
 like case over or under the railway. 
 
 52. Provided also, that if the mesne inclination of any 
 road within two hundred and fifty yards of the point of 
 crossing the same, or the inclination of such portion of 
 any road as may require to be altered, or for which 
 another road shall be substituted, shall be steeper than 
 the inclination herein-before required to be preserved by 
 the company, then the company may caiTy any such road 
 over or under the railway, or may construct such altered 
 or substituted road at an inclination not steeper than the 
 said mesne inclination of the road so to be crossed, or of 
 the road so requiring to he altered, or for which another 
 road shall be substituted, (g) 
 
 53. If, in the exercise of the powers by this or the 
 special act granted, it be found necessary to cross, cut 
 through, raise, sink, or use any part of any road, whe- 
 ther carriage road, horse road, tramroad, or railway, 
 either public or private, so as to render it impassable for 
 or dangerous or extraordinarily inconvenient to passen- 
 gers or carriages, or to the persons entitled to the use 
 thereof, the company shall, before the commencement of 
 any such operations, cause a sufficient road to be made 
 instead of the road to be interfered with, and shall at 
 
 {g) See Treat, ante, p. 108.
 
 8 Vict. c. 20 — Radwmjs Clauses. clxxxi 
 
 their own expense maintain such substituted road in a 
 state as convenient for passengers and carriages as the road 
 so interfered with, or as nearly so as may be. (/;) 
 
 54. If the company do not cause another sufficient Penalty for 
 road to be so made before they interfere with any such "°' substitut- 
 existiug road as aforesaid, they shall forfeit twenty "'° '' '°*''' 
 pounds for every day during which such substituted road 
 
 shall not be made after the existing road shall have been 
 interrupted ; and such penalty shall be paid to the trus- 
 tees, commissioner, surveyor, or other person having the 
 management of such road, if a public road, and shall be 
 applied for the purposes thereof, or in case of a private 
 road the same shall be paid to the owner thereof, and 
 every such penalty shall be recoverable with costs by 
 action in any of the supei'ior courts, (i) 
 
 55. If any party entitled to a right of way over any Party sutrer- 
 road so interfered with by the company shall suffer any |.j;g<'a."'age 
 special damage by reason that the company shall fail to rlTprion of" 
 cause another sufficient road to be made before they in- '"^'^. "> ""eco- 
 terfere witli the existing road, it shall be lawful for such uon'on^Uir' 
 party to recover the amount of sucli special damage case, 
 from the company, with costs, by action on the case in 
 
 any of the superior courts, and that whether any party 
 shall have sued for such penalty as aforesaid or not, and 
 without prejudice to the right of any party to sue tor the 
 same. 
 
 56. If the road so interfered with can be restored com- Period for 
 patibly with the formation and use of the railway, the Z'Xfli"r°' 
 same shall be restored to as good a conditiou as the same fered with, 
 was in at the time when the same was first interfered with 
 
 by the company, or as near thereto as may be ; and if 
 such road cannot be restored compatibly witii the forma- 
 tion and use of the railway, the company shall cause the 
 new or substituted road, or some other sufficient substi- 
 tuted road, to be put into a permanently substantial con- 
 dition, equally convenient as tlie former road, or as near 
 thereto as circumstances will allow ; and the former road 
 shall be restored, or the substituted road put iuto siicii 
 condition as aforesaid, as the case may be, within tlie fol- 
 lowing periods after the first operation on tlie former road 
 shall have been commenced, unless tlie trustees or parties 
 
 (ft) As to scope and opeiation of closely similar clause in pre- 
 existing acts, see Treatise, p. 99, et secj. 
 
 (i) As to wiio meant by owner in this clause, see Treatise, 
 lb.
 
 clxxxii Appendix — Statutes. 
 
 having the management of the road to be restored, by 
 writing under their hands, consent to an extension of the 
 period, and in such case within such extended period ; 
 (that is to say, ) if the road be a turnpike road, within 
 six months, and if the road be not a turnpike road, within 
 twelve months. (A) 
 Penalty for 57. If any such road be not so restored, or the substi- 
 restorVroad. t^^ed road SO Completed as aforesaid, within the periods 
 herein or in the special act fixed for that purpose, the 
 company shall forfeit to the trustees, commissioners, sur- 
 veyor, or other person having the management of the 
 road interfered with by the company, if a public road, or 
 if a private road to the owner thereof, rive pounds for 
 every day after the expiration of sucli periods respectively 
 during which such road shall not be so restored or the 
 substituted road completed ; and it shall be lawful for 
 the justices by whom any such penalty' is imposed to order 
 the whole or anj' part thereof to be laid out in executing 
 the work in respect whereof such penalty was in- 
 curred. (I). 
 Company to 58. If in the course of making the railway the com- 
 used'byThem P^'^Y ^^^^ ^se or interfere with any road they shall from 
 ' time to time make good all damage done by them to such 
 road ; and if any question shall arise as to the damage 
 done to any such road by the company, or as to the re- 
 pair thereof by them, such question shall be referred to 
 the determination of two justices j and such justices maj" 
 direct such repairs to be made in the state of such road, 
 in respect of the damage done by the company, and 
 within such period as they think reasonable, and may 
 impose on the company, for not carrying into effect such 
 repairs, any penalty not exceeding five pounds per daj- as 
 to such justices shall seem just ; and such penalty shall be 
 paid to the surveyor or other person having the manage- 
 ment of the road interfered with by the companj-, if a 
 public road, and be applied for the purposes of such road, 
 or if a private road the same shall be paid to tlie owner 
 thereof: provided always, that, in determining any such 
 question with regard to a turnpike road, the said justices 
 shall have resfard to and and shall make full allowance 
 
 (Ji) As to what meant by restoring road, see Treatise, p. 105 ; 
 and when new road may be deemed as convenient as old, Sec, 
 see Treatise, p. 101, et seq. 
 
 (/) See note (i), ante, p. elxxxi.
 
 8 Fict. c. 20 — Railways Clauses. clxxxiii 
 
 for any tolls that may have been paid by the company on 
 such road in the course of the using thereof. 
 
 59. When the company shall intend to apply for the Proceedings 
 consent of two justices, as hereinbefore provided, so as to uon f^'jus" 
 authorize them to carry the railway across any highway tices to con- 
 other than a public carriage road on the level, they shall, *''"' '° '*''^' 
 fourteen days at least previous to the holding of the petty brwieways 
 sessions at which such application is intended to be made, ='"<' footways, 
 cause notice of such intended application to be given in 
 
 some newspaper circulating in the county, and also to be 
 affixed upon the door of the parish church of the parish 
 in which such crossing is intended to be made, or if there 
 be no such church some other place to which notices are 
 usually affixed ; and if it appear to any two or more 
 justices acting for the district in which such highway at 
 the proposed crossing thereof is situate, and assembled 
 in petty sessions, after such notice as aforesaid, that the 
 railway can, consistently with due regard to the public 
 safety and convenience, be earned across such highway 
 on the level, it shall be lawful for sucli justices to consent 
 that the same maj' be so carried accordingly. 
 
 60. If eitlier party shall feel aggrieved by tlie deter- Appeal 
 mination of such justices upon any such application as against the 
 aforesaid, it shall be lawful for such party, in like man- of ihe'jusMces'. 
 ner and subject to the like conditions as are liereinaffer 
 provided in the case of appeals in respect of penalties 
 
 and forfeitures, to appeal to the quarter sessions of the 
 county or place in which the cause of appeal sliall have 
 arisen ; and it shall be lawful for the justices in such 
 quarter sessions, upon the hearing of such appeal, either to 
 confirm or quash the determination, or to make such order 
 in regard to the method of carrying tiie rail wa\' across 
 such "highway as aforesaid, as to them shall seem fit, and 
 to make such order concerning the costs both of the ori- 
 ginal application and of the appeal as to them shall seem 
 reasonable. 
 
 61. If the railway shall cross any highway otiier than Company lo 
 
 ,_. . J ,, 1,1 iiii make •uHi- 
 
 a public carnage way on the level, the company sliall at ^,^^^^ ,p. 
 their own expense make and at all times luaintain con- proaci.<-» ami 
 venient ascents and descents and other convenient ap- J;j;;;;,''^y,",J'^- 
 proaches, with handrails or other fences, and sliall it'rooiwayi 
 such highway be a bridleway, erect and at all times main- ;',',';';^;!y' 
 tain good and sufficient gates, and if the same sliall bo a 
 footway, good and sufficient gates or stil(!s, on each 
 side of the railway w^here the higiiway shall communi- 
 cate therewith.
 
 clxxxiv 
 
 Justices to 
 have power 
 to order ap- 
 proaches and 
 fences to be 
 made to high 
 ways crossint 
 on the level. 
 
 Screens for 
 
 Turnpike 
 
 Roads. 
 
 Screen for 
 roads to be 
 made, if re- 
 quired by the 
 Board of 
 Trade. 
 
 Penalty for 
 failing to 
 construct. 
 
 /Appendix — Statutes. 
 
 62. If, where the railway shall cross any highway on 
 the level, the company fail to make convenient ascents 
 and descents or other convenient approaches, and such 
 handrails, fence, gates and stiles as they are hereinbefore 
 required to make, it shall be lawful for two justices, on 
 the application of the surveyor of roads, or of any two 
 householders within the parish or district where such 
 crossing shall be situate, after not less than ten days 
 notice to the company, to order the company to make 
 such ascent and descent or other approach, or such hand- 
 rails, fences, gates, or stiles as aforesaid within a period to 
 be limited for that purpose by such justices ; and if the 
 company fail to comply with such order they shall forfeit 
 five pounds for every day that they fail so to do ; and it 
 shall be lawful for the justices by whom any such pe- 
 nalty is imposed to order the whole or any part thereof to 
 be applied, in such manner and by such person as they 
 think fit, in executing the work in respect whereof such 
 penalt}^ was incurred. 
 
 63. If the commissioners or trustees of any turnpike 
 road, or the surveyor of any highway, apprehend danger 
 to the passengers on such road, in consequence of horses 
 being frightened by the sight of the engines or carriages 
 travelling upon the railway, it shall be lawful for such 
 commissioners, or trustees, or surveyor, after giving 
 fourteen days notice to the company, to apply to the 
 Board of Trade with respect thereto ; and if it shall appear 
 to the said board that such danger might be obviated or 
 lessened by the construction of any works in the nature 
 of a screen near to or adjoining the side of such road, it 
 shall be lawful for them, if they shall think fit, to certify 
 the works necessary or proper to be executed by the 
 company for the purpose of obviating or lessening such 
 danger, and by such certificate to require the company 
 to execute such works withhi a certain time after the 
 service of such certificate, to be appointed by the said 
 board. 
 
 64. Where by any such certificate as aforesaid the 
 company shall have been required to execute any such 
 work in the nature of a screen, they shall execute and 
 complete the same within the period appointed for that 
 purpose in such certificate : and if they fail so to do they 
 shall forfeit to the said commissioners, or trustees, or sur- 
 veyor, five pounds for every day during Avhich such works 
 shall remain uncompleted beyond the period so appointed
 
 8 Vict. c. 20— Railways Clauses. clxxxv 
 
 for their completion ; and it shall be lawful for the jus- 
 tices by whom any such penalty is imposed to order the 
 whole or any part thereof to be "laid out in executing the 
 Avork in respect whereof such penalty was incurred." 
 
 65. Where, under the provisions of this or the special Construe 
 act, or any act incorporated therewith, the company are tion of ' 
 required to maintain or keep in repair any bridge, fence. Bridges. 
 approach, gate, or other work executed by them, it shall Jnsiices to * 
 be lawful for two justices, on the application of the sur- fo^order'"''' 
 vej^or of roads, or of any two householders of the parish repairer 
 
 or district where such work may be situate, complaining bridges, &c. 
 that any such work is out of riepair, after not less than 
 ten days notice to the company, to order the company to 
 put such work into complete repair within a period to be 
 limited for that purpose by such justices ; and if the com- 
 pany fail to comply with such order, they shall forfeit 
 five pounds for every day that they fail so to do ; and it 
 shall be lawful for the justices by whom any such penalty 
 is imposed to order the whole or any part thereof to be 
 applied, in such manner and by such persons as they 
 think fit, in putting such work into repair. 
 
 66. And whereas expense miglit frequently be avoided, Board of 
 and public convenience promoted, by a reference to tlio Trade em- 
 Board of Trade upon the construction of public works of J'n^Jri^fy'thc" 
 an engineering nature connected with the railway, wliere construciion 
 a strict compliance with the provisions of this or the spe- "og""*'" 
 cial act might be impossible, or attended with inconve- bridges, &c., 
 nience to the company, and without adequate advantage where a strict 
 to the public ; be it enacted, that in case any difi'erence >viUiMre"act 
 in regard to the construction, alteration, or restoration of is impossible 
 any road or bridge, or other public Avork of an engineer- 
 ing nature, required by the provisions of this or the s])ccial 
 act, shall arise between the company and any trustees, 
 commissioners, surveyors, or other persons having tlic 
 control of or being autliorized by law to enforce tlic con- 
 struction of such road, bridge, or work, it shall be lawful 
 for either party, after giving fourteen days notice in 
 writing of their intention so to do to tlie other party, to 
 apply to the Board of Trade to decide upon tlie i)roi)(T 
 manner of constructing, altering, or restoring siicli road, 
 bridge, or otlier work ; and it shall be lawful for the 
 Board of Trade, if they shall think fit, to decide the same 
 accordingly, and to autliorize, Ijy certificate in writing, 
 any arrangement or mode of construction in rcganl to 
 any such road, bridge, or otlier work which sliall apjicar 
 
 or iDconve- 
 iiitiii.
 
 clxxxvi 
 
 Appendix — Statutes. 
 
 Authentica 
 tion of cer- 
 tificates of 
 
 to them either to be in substantial compliance with tlie 
 provisions of this and the special act, or to be calculated 
 to aiFord equal or greater accommodation to the public 
 using such road, bridge, or other work ; and after any- 
 such certificate shall have been given by the Board of 
 Trade, the road, bridge, or other work therein mentioned 
 shall be constructed by the company in conformity with, 
 the terms of such certificate, and being so constructed 
 shaU be deemed to be constructed in conformity with the 
 provisions of this and the special act : provided always, 
 that no such certificate shall be granted by the Board of 
 Trade, unless they shall be satisfied that existing private 
 rights or interests will not be injuriously afiected thereby. 
 67. And be it enacted, that all regulations, certificates, 
 notices, and other documents in writing purporting to be 
 the Board of made or issued by or by the authority- of the Board of 
 Trade, ser^ce Trade, and signed by some officer appointed for that pur- 
 ' ■ pose by the Board of Trade, shall, for the purposes of this 
 and the special act, and any act incoii^orated therewith, 
 be deemed to have been so made and issued, and that 
 without proof of the authority of the person signing the 
 same, or of the signature thereto, which matters shall be 
 presumed uutil the contrarj^ be proved ; and service of 
 any such document, bj^ leaving the same at one of the 
 principal offices of the railway companj', or by sending 
 the same by post addressed to the secretarj- at such office, 
 shall be deemed good service upon the company' ; and all 
 notices and other documents reriuu-ed by this or the special 
 act to be given to or laid before the Board of Trade shall 
 be delivered at, or sent by post addressed to, tlie office 
 of the Board of Trade in London. 
 
 Works for 
 Protection 
 and Accom- 
 modation 
 of Lands, 
 
 Gates, 
 bridges, &c. 
 
 And witli respect to works for the accommodation of 
 lands adjoining tlie railway, be it enacted as follows : 
 
 68. The company shall make and at all times there- 
 after maintain the following works for the accommoda- 
 tion of the owners and occupiers of lands adjoining the 
 railway ; (that is to say, ) 
 
 Such and so many convenient gates, (m) bridges, 
 arches, culvei'ts, and passages, over, under, or by 
 the sides of or leading to or from the railway as shall 
 be necessary for the purpose of making good any 
 interruptions caused by the railway to the use of the 
 
 (m) See ante, 5 Sc 6 Vict. c. 55, s. 10 ; ante, p. 346. 
 
 J
 
 8 Vict. c. 20 — Railways Clauses. clxxxvii 
 
 lands through which the railway shall be made : 
 and such works shall be made forthwith after the 
 part of the railway passing over such lands shall 
 have been laid out or formed, or during the forma- 
 tion thereof: (w) 
 Also sufficient posts, rails, hedges, ditches, mounds, or Fences : 
 other fences for separating the land taken for the use 
 of the railway from the adjoining lands not taken, 
 and protecting such lands from trespass, or the cattle 
 of the owners or occupiers thereof from strayino' 
 thereout, by reason of the railway, together with all 
 necesssary gates made to open towards such adjoin- 
 ing land, and not towards the railway, and all ne- 
 cessary stiles ; and such posts, rails, and other fences 
 shall be made forthwith after the taking of any such 
 lands, if the owners thereof shall so require, and the 
 said other works as soon as conveniently may be : 
 Also necessary arches, tunnels, culverts, drains, or oiains: 
 other passages, either over or under, or by the sides 
 of the railway, of such dimensions as will be suffi- 
 cient at all times to convey the water as clearlj^ from 
 the lands lying near or affected by the railway as 
 before the making of the railway, or as nearly so as 
 maj^ be ; and such works shall be made from time 
 to time as the railway works proceed : 
 Also proper watering places for cattle where by reason Watering 
 of the railway the cattle of any person occupying places: 
 any lands lying near thereto shall be deprived of 
 access to their former watering places: and suclx 
 watering places shall be so made as to be at all times 
 as sufficiently supplied with water as theretofore, and 
 as if the railway had not been made, or as nearly so 
 as may be ; and the company shall make all neces- 
 sary watercourses and drains for tlie purpose of con- 
 veying water to tlie said watering places : 
 Provided always, that the company sliall not be required 
 to make such accommodation works in such a nianner as 
 would prevent or obstruct the working or using of the 
 railway, nor to make any accommodation works witli 
 respect to which the owners and occupiers of tlie lands 
 shall have agreed («) to receive and shall have been paid 
 compensation instead of the making them. 
 
 (n) As to the making of communications, and the right of the 
 owner to cross in the interim, see Treatise, pp. 121, 122. 
 (o) See ante, p. 122.
 
 clxxxviii 
 
 Differences 
 as to accom- 
 modation 
 works to be 
 settled by 
 justices. 
 
 Execntion of 
 works by 
 owners on de- 
 fault by the 
 company. 
 
 Appendix — Statutes. 
 
 69. If any difterence arise respecting the kind or 
 number of any such accommodation works, or the di- 
 mensions or sufficiency thereof, or respecting the main- 
 taining thereof, the same shall be determined by two 
 justices ; and such justices shall also appoint the time 
 within which such v.orks shall be commenced and exe- 
 cuted by the company. 
 
 70. If for fourteen daj^s next after the time appointed 
 by such justices for the commencement of any such works 
 the company shall fail to commence such works, or having 
 commenced shall fail to proceed diligently to execute the 
 same in a sufficient manner, it shall be lawful for the partj' 
 aggrieved by such failure himself to execute such works 
 or repairs : and the reasonable expenses thereof shall be 
 repaid by the company to the party by whom the same 
 shall so have been executed ; and if there be any dispute 
 about such expenses the same shall be settled by two jus- 
 tices ; provided always, that no such owner or occupier 
 or other person shall obstruct or injure the railway, or 
 any of the works connected therewith, for a longer time 
 nor use them in any other manner than is unavoidably 
 necessary for the execution or repair of such accommo- 
 dation works. 
 
 Power to 71 . If any of the owners or occupiers of lands affected 
 
 owners of Y)y sucli railway shall consider the accommodation works 
 additional ac- made by the company, or directed by such justices to be 
 commodaiion made by the company, insufficient for the commodious 
 ^'"^''^' use of their respective lands, it shall be lawful for any 
 
 such owner or occupier, at any time, at his own expense, 
 to make such further works for that purpose as he shall 
 think necessary, and as shall be agreed to by the com- 
 pany, or, in case of difference, as shall be authorized by 
 two justices. 
 Such works 72. If the company so desire, all such last-mentioned 
 to be con- accommodation works shall be consti'ucted under the su- 
 der 'ihe'^sHper- perintendence of their engineer, and according to plans 
 intendence of and specifications to be submitted to and approved by 
 "^ such engineer: nevertheless the company shall not be 
 
 entitled to require, either that plans should be adopted 
 which would involve a greater expense than that incurred 
 in the execution of similar works by the company, or that 
 the plans selected should be executed in a more expensive 
 manner than that adopted in similar cases by the corn- 
 pan j*. 
 Accommoda- 73. The Company shall not be compelled to make any 
 tion works further or additional accommodation works for the use of 
 
 the com- 
 pany's en- 
 gineer.
 
 8 Vict. c. 20— Railwmjs Clauses. clxxxix 
 
 owners and occupiers of land adjoining the railway after "o' «<> be re. 
 the expiration of the prescribed period, or, if no period T"^'^ ^'^^^ 
 be prescribed, after five years from the completion of tlie ^^ ^""' 
 works, and the opening of the railway for public use. 
 
 74. Until the company shall liave made the bridges or Owners to be 
 other proper communications which tliey shall under the *"o«'6'i to 
 provisions herein, or in the special act, or any act incor- commodalion 
 porated therewith, contained, have been required to make works are 
 between lands intersected by the raih\ay, and no longer "'"'**• 
 the owners and occupiers of such lands, and any other 
 persons whose right of way shall be affected by the want 
 of such communication, and their respective servants, may 
 at all times freely pass and repass, with carriages, horses 
 and other animals, directly (but not otherwise) across the 
 part of the railway made in or tlirough their respective 
 lands, solely for the purpose of occupying the same lands, 
 or for the exercise of such right of way, and so as not to 
 obsti-uct the passage along the railway, or to damage the 
 same ; nevertheless, if the owner or occupier of any such 
 lands have in his arrangements with the company received 
 or agreed to receive compensation for or on account of 
 any such communications, instead of the same being- 
 formed, such owner or occupier, or those claiming under 
 liim, shall not be entitled so to cross the railway, (p) 
 
 75. If any person omit to shut and fasten any gate set Penalty on 
 up at either side of the railway, for the accommodation pe^ons 
 of the owners or occupiers of the adjoining lands, as soon gates." 
 as he, and the carriage, cattle, or other animals, under 
 
 his care, have passed through the same, he sliall forfeit 
 for every such offence any sum not exceeding forty siiil- 
 
 lings. Braitch 
 
 Railways. 
 
 76. And be it enacted, that this or tlie special act sliall Power to 
 not prevent the owners or occupiers of lands adjoining n"k"p'1y3„ 
 to the railway, or any other persons, from laying down, branch rail- 
 either upon their own lands or upon the lands of other ways connnii 
 
 ^ . 1 , , n ^ 11 i 1 iiicatine wiih 
 
 persons, with the consent oi such persons, any collateral ,he railway, 
 branches of railway to communicate with the railway, for 5 & a Vict, 
 the purpose of bringing carriages to or from or u])on the "^' ''" 
 railway, but under and subject to the provisions and re- 
 strictions of an act passed in the sixth year of the reign 
 of her present Majesty, intituled "An Act for the bet- 
 
 (p) See note (n), ante, p. clxxxvii. As to what has been held an 
 arrangement under a particular railway act, such as to take away 
 the right of the owner to cross the railway, see Treatise, p. 122. 
 
 oinit- 
 asteii
 
 and condi' 
 tiooe, 
 
 Appendix — Statutes. ■ 
 
 ter Regulation of Railways, and for the Conveyance of 
 Troops :" and the company shall, if required, at the ex- 
 pense of such owners and occupiers and other persons, 
 and subject also to the propulsions of the said last-men- 
 tioned act, make openings in the rails, and such additional 
 lines of rail as may be necessary for effecting such commu- 
 nication, in places where the communication can be made 
 with safety to the public, and without injui-y to the rail- 
 way, and without inconvenience to the traffic thereon ; 
 and the company shall not take any rate or toll or other 
 monies for the passing of any passengers, goods, or other 
 things along any branch so to be made by any such owner 
 or occupier or other person ; but this enactment shall be 
 subject to the follow ing restrictions and conditions ; (that 
 is to say,) 
 Restrictions ?v^o such branch railway shall run parallel to the rail- 
 way : 
 The company shall not be bound to make any such 
 openings in any place which they shall have set apart 
 for any specific purpose with which such communi- 
 cation would interfere, nor upon any inclined plane 
 or bridge, nor in any tunnel : 
 The persons making or using such branch railways 
 shall be subject to all bye-laws and regulations of 
 the company from time to time made with respect to 
 passing upon or crossing the railway, and otherwise ; 
 and the persons making or using such branch rail- 
 w-ays shall be bound to construct, and from time to 
 time, as need may require, to renew, the offset plates 
 and swdtclies according to the most approved plans 
 adopted by the company, and under the direction 
 of their engineer, {q) 
 
 Working And with respect to mines lying under or near the rail- 
 
 of Mines, way, be it enacted as follows : 
 
 Company not ^7. The Company shall not be entitled to any mines of 
 
 to be entitled coals, ironstoue, slate, or other minerals under any land 
 
 to mineralf. purchased by them, except only sucli parts thereof as 
 
 shall be necessary- to be dug or carried away or used in 
 
 the construction of the works, unless the same shall have 
 
 been expressly purchased ; aud all such mines, excepting 
 
 as aforesaid, shall be deemed to be excepted out of the 
 
 (q) As to the operation of analogous clause in particular rail- 
 way acts, see Treatise, p. 124.
 
 8 Vict. c. 20 — Railway a Clauses. cxci 
 
 conveyance of such lands, unless they shall liave been 
 expressly named therein and conveyed thereby, (r) 
 
 78. If the owner, lessee, or occupier of any mhies or Mines lying 
 minerals lying under the railway, or any of the works "*^'' "'^ '^*''" 
 connected therewith, or Avithin the prescribed distance, be worked" if 
 or, where no distance shall be prescribed, forty yards ""^ company 
 therefrom, be desirous of working the same, such owner, pulcha'se" 
 lessee, or occupier shall give to the company notice in them, 
 writing of his intention so io do tliirty days before the 
 commencement of working ; and upon the receipt of such 
 notice it shall be lawful for the company to cause such 
 mines to be inspected by any person appointed bv them 
 for the purpose ; and if it appear to the company that 
 the working of such mines or minerals is likely to damage 
 the works of the railway, and if the company be willing 
 to make compensation for such mines or any part thereof 
 to such owner, lessee, or occupier thereof, then he shall 
 not work or get the same ; and if the company, and sucli 
 owner, lessee, or occupier, do not agree as to the amount 
 of such compensation, the same shall be settled as in 
 other cases of disputed compensation. 
 
 79. If before the expiration of such thirt}^ days the if company 
 company do not state their willingness to treat with such "twilling to 
 owner, lessee, or occupier for the payment of such com- ,uvnerm'ay 
 pensation, it shall be lawful for him to work tlie said work iiie 
 mines or any part thereof for which the company siiall """'^'• 
 not have agreed to paj' compensation, so that the same 
 be done in a manner proper and necessary for the bene- 
 ficial working thereof, and according to the usual manner 
 of working such mines in the district where tlie sanu; 
 shall be situate ; and if any damage or obstruction be 
 occasioned to the railway or works by improi)er working- 
 of such mines, the same shall be forthwith repaired or 
 removed, as the case may require, and sucli damage made 
 good, by the owner, lessee, or occupier of such mines or 
 minerals, and at his OAvn expense ; and if such repair or 
 removal be not forthwith done, or, if the company shall 
 so think fit, without waiting for the same to be doni; l)y 
 such owner, lessee, or occupier, it shall be lawful for the 
 company to execute the same and recover from sucli 
 owner, lessee, or occupier the expense occasioned thereby, 
 by action in any of the superior courts. 
 
 80. If the working of any such mines under the rail- Alii.ing com. 
 
 on llic 
 subject ( 
 
 (r) As to provisions in particular railway acts, etc., 
 ibject of mines, see Treatise, pp. 1 18, et seq.
 
 cxcu 
 
 Company to 
 make com- 
 pensation for 
 injury done 
 to mines; 
 
 and also for 
 any airway 
 or other work 
 made neces- 
 sary by the 
 railway. 
 
 Power to 
 company to 
 
 Appendix — Statutes. 
 
 way or works, or within the above-mentioned distance 
 therefrom, be prevented as aforesaid by reason of appre- 
 hended injury to the railway, it shall be lawful for the 
 respective owners, lessees, and occupiers of such mines, 
 and whose mines shall extend so as to lie on both sides 
 of the railwaj', to cut and make such and so many air- 
 ways, headways, gateways, or water levels through the 
 mines, measures, or strata, the working whereof shall be 
 so prevented, as may be requisite to enable them to ven- 
 tilate, drain, and work their said mines, but no such air- 
 way, headway, gateway, or water level shall be of greater 
 dimensions or section than the prescribed dimensions and 
 sections, and where no dimensions shall be described not 
 greater than eight feet wide and eight feet high, nor shall 
 the same be cui; or made upon any part of the railway or 
 works, or so as to injure the same, or to impede the pas- 
 sage thereon. 
 
 81. The company shall from time to time pay to the 
 owner, lessee, or occupier of any such mines extending 
 so as to lie on both sides of the railway all such addi- 
 tional expenses and losses as shall be incurred by such 
 owner, lessee, or occupier by reason of the severance of 
 the lands lying over such mines by the railway, or of the 
 continuous working of such mines being interrupted as 
 aforesaid, or by reason of the same being worked in such 
 manner and under such restrictions as not to prejudice or 
 injure the railway, and for anj^ minerals not purchased 
 by the company which cannot be obtained by reason of 
 making and maintaining the railway ; and if any dispute 
 or question shall arise between the company and such 
 owner, lessee, or occupier as aforesaid, touching the 
 amount of such losses or expenses, the same shall be set- 
 tled by arbitration. 
 
 82. If any loss or damage be sustained by the owner 
 or occupier of the lands lying over any such mines the 
 working whereof shall have been so prevented as afore- 
 said (and not being the owner, lessee, or occupier of such 
 mines), by reason of the making of any such airway or 
 other work as aforesaid, which or any like work would 
 not have been necessary to be made but for the working 
 of such mines having been so prevented as aforesaid, the 
 company shall make full compensation to such owner or 
 occupier of the surface lands for the loss or damage so 
 sustained by him. 
 
 83. For better ascertaining whether any such mines 
 are being worked or have been worked so as to damage
 
 8 Vict. c. 20—Railwa7js Clauses. cxciii 
 
 tlie railway or works, it shall be lawful for the company, enter and 
 after giving twenty-four hours notice in writino-, to enter '"spec the 
 upon any lands through or near which the railway passes mines"^ "^ 
 wherein any such mines are being worked or are sup- 
 posed so to be, and to enter into and return from any 
 such mines or the works connected therewith ; and for 
 that purpose it shall be lawful for them to make use of 
 any apparatus or machinery belonging to the owner 
 lessee, or occupier of such mines, and to use all neces- 
 sary means for discovering the distance from the railway 
 to the parts of such mines which are being worked or 
 about so to be. 
 
 84. If any such owner, lessee, or occupier of any such Penalty for 
 mines shall refuse to allow any person appointed by the r^*^"**' '" 
 company for that purpose to enter into and inspect any '"*'''"■ 
 such mines or works in manner aforesaid, every person 
 
 so offending shall for every such refusal forfeit to the 
 company a sum not exceeding twenty pounds. 
 
 85. If it appear that any such mines have been worked If mines 
 contrary to the provisions of this or the special act, the '"'P^opef'y 
 
 -PiU iU- 1 J5i • ^- X ,1 ' worked, the 
 
 company may, it they think ht, give notice to the owner, company 
 lessee, or occupier thereof to construct such works and ""V reqaire 
 to adopt such means as may be necessary or proper for "(lopled'for^ 
 making safe the railway, and preventing injury thereto ; '!>« safety of 
 and if after such notice any such owner, lessee, or occu- '""^ "''way- 
 pier do not forthwith proceed to construct the works 
 necessary for making safe the railway, the company may 
 themselves construct such works, and recover the ex- 
 pense thereof from such owner, lessee, or occupier by 
 action in any of the superior courts. 
 
 And with respect to the carrying of passengers and Passengers 
 goods upon the railway, and the tolls to be taken thereon, and Goods 
 be it enacted as follows : "« Railway. 
 
 86. It shall be lawful for the company to use and em- Company to 
 plov locomotive ensrines or otlier moving power, and employ lo- 
 
 ■'• J ° .. 1. 1 II 1 *l 1 comolive 
 
 carriages and waggons to be drawn or propelled tliorehy, powt-r, car- 
 and to carry and convey upon the railway all such pus- .iagcs, &c. 
 sengers and goods as shall be offered to them for thiit 
 purpose, and to make such reasonable ciiarges in respect 
 thereof as they may from time to time determine upon, 
 not exceeding the tolls by the special act authorized to 
 be taken by them, (s) 
 
 (s) As to what not reasonable charges, see Treatise, p. 317, 
 318. As to position of company as carriers generally, see Trea- 
 tise, p. 303, et seq. 
 
 I I
 
 CXCIV 
 
 Company 
 empowered 
 to contract 
 with other 
 companies. 
 
 Contracts 
 not to affect 
 persons not 
 parlies 
 ibereto. 
 
 Company not 
 to be liable 
 to a gieater 
 extent than 
 common car- 
 riers. 
 
 Power (0 
 vary tolls. 
 
 Appendix — Statutes . 
 
 87. It shall be lawful for the company from time to 
 time to enter into any contract with any other company, 
 being the owners or lessees or in possession of any other 
 railway, for the passage over or along the railway by the 
 special act authorized to be made of any engines, 
 coaches, waggons, or other carriages of any other com- 
 pany, or which shall pass over anj' other line of railway, 
 or for the passage over any other line of railway of any 
 engines, coaches, Avaggons, or other carriages of the 
 company, or which shall pass over their line of railway, 
 upon the payment of such tolls and under such conditions 
 and restrictions as may be mutually agreed upon ; and 
 for the purpose aforesaid it shall be lawful for the re- 
 spective parties to enter into any contract for the division 
 or apportionment of the tolls to be taken upon their 
 respective railways. 
 
 88. Provided always, that no such contract as afore- 
 said shall in any manner alter, aftect, increase, or di- 
 minish any of the tolls which the respective companies, 
 parties to such contracts, shall for the time being be 
 respectivelj' authorized and entitled to demand or receive 
 from any person or any other company, but that all other 
 persons and companies shall, notwithstanding anj' such 
 contract, be entitled to the use and benefit of any of the 
 said railways, upon the same terms and conditions, and 
 on payment of the same tolls, as they would have been 
 in case no such contract had been entered into. 
 
 89. Nothing in this or the special act contained shall 
 extend to charge or make liable the company further or 
 in any other case than where, according to the laws of 
 the realm, stage coach proprietors and common carriers 
 would be liable, nor shall extend in any degree to deprive 
 the company of any protection or privilege which com- 
 mon carriers or stage coach proprietors may be entitled 
 to ; but, on the contrary, the company shall at all times 
 be entitled to the benefit of every such protection and 
 privilege, (t) 
 
 90. And whereas it is expedient that the company 
 should be enabled to vary the tolls upon the railway so 
 as to accommodate them to the circumstances of the 
 traffic, but that such power of varying should not be 
 used for the purpose of prejudicing or favouring particu- 
 lar parties, or for the purpose of collusively and unfairly 
 creating a monopoly, either in the hands of the company 
 
 (() As to the nature and extent of the liability of the com- 
 pany as carriers, see Treat., p. 306, etseq.
 
 8 Fict. c. 20— Railways Clauses. cxcv 
 
 or of particular parties ; it shall be lawful, therefore, for 
 
 the company, subject to the provisions and limitations 
 
 herein and in the special act contained, from time to time 
 
 to alter or vary the tolls by the special act authorized to 
 
 be taken, either upon the whole or upon any particular 
 
 portions of the railway, as they shall think fit ; provided 
 
 that all such tolls be at all times charged equally (u) to Toiu to be 
 
 all persons, and after the same rate, whether per ton per "Charged 
 
 mile or otherwise, in respect of all passengers, and of all [ik?ci>c"iim!'^ 
 
 goods or carriages of the same description, and conveyed stances. 
 
 or propelled by a like carriage or engine, passing only 
 
 over the same portion of the line of railway under the 
 
 same circumstances ; and no reduction or advance in any 
 
 such tolls shall be made either directly or indu'ectly in 
 
 favour of or against anj^ particular company or person 
 
 travelling upon or using the railway, (x) 
 
 91 . And whereas authority has been given by various How tolls to 
 acts of parliament to railway companies to demand tolls wbere'^rau-'* 
 for the conveyance of passengers and goods and for other ways amai- 
 services over the fraction of a mile equal to the toll ?'<"""e''- 
 which they are authorized to demand for one mile ; there- 
 fore, in cases in which any railway shall be amalgamated 
 
 with any other adjoining railway or railways, sucli tolls 
 shall be calculated and imposed at such rates as if such 
 amalgamated railways had originally formed one line of 
 railway. 
 
 92. It shall not be lawful for the company at any time Railway to 
 to demand or take a greater amount of toll, or make any ''« ''"^ "" . 
 
 a . „ ' , • |>ayinent of 
 
 greater charge for the carriage or passengers or goods, iuHj. 
 than they are by this and the special act authorized to 
 demand ; and upon payment of the tolls from time to 
 time demandable all companies and persons shall be en- 
 titled to use (y) the railway, with engines and carriages 
 properly constructed as by this and the special act 
 directed, subject nevertheless to the provisions and re- 
 strictions of the said act of the sixth year of her present 
 Majesty, intituled " An Act for the better Regulation of 5 .v Vict. 
 Railways, and for the Conveyance of Troops," and to =• 55- 
 
 (u) As to what not equal charges, &c., see Treatise, p. 318 
 —320. 
 
 (x) This clause gives a power to companies within certain 
 limits to vary their charges so as to accommodate them to the 
 circumstances of their traffic, a power which, under the ohl equal 
 rate clause, they did not enjoy. See Fifth Report of Select 
 Committees on Railways, Minutes of Evidence, p. 298. 
 
 {y) See Treatise, p. 298-390. 
 I I 2
 
 cxcvi Appendix— Statutes. 
 
 the regulations to be from time to time made by the com- 
 pany by virtue of the powers in that behalf hereby and 
 by the special act conferred upon them. 
 List of lolls 93. A list of all the tolls authorized by the special act 
 bUed on a' ^^ ^^ taken, and which shall be exacted by the company, 
 board. shall be published by the same being painted upon one 
 
 toll board or more in distinct black letters on a white 
 ground, or white letters on a black ground, or by the 
 same being printed in legible characters on paper affixed 
 to such board, and by such board being exhibited in 
 some conspicuous place on the stations or places where 
 such tolls shall be made payable. 
 Miiestoues. 94. The company shall cause the length of the railway 
 to be measured, and milestones, posts, or other con- 
 spicuous objects to be set up and maintained along the 
 whole line thereof, at the distance of one quarter of a 
 mile from each other, with numbers or marks inscribed, 
 thereon denoting such distances. 
 Tolls to be 95. No tolls shall be demanded or taken by the com- 
 
 whUstToard P^^Y ^or the use of the railway during any time at which 
 exhibited and the boards hereinbefore directed to be exhibited shall not 
 mHestoDes j^g g^ exhibited, or at which the milestones hereinbefore 
 directed to be set up and maintained shall not be so set 
 up and maintained ; and if anj"- pei-son wilfully pull 
 down, deface, or destroy any sucli board or milestone, 
 he shall forfeit a sum not exceeding five pounds for every 
 such offence. 
 Tolls to be 96. The tolls shall be paid to such persons, and at such 
 
 r"*'''d'b' places upon or near to the railway, and in such manner 
 company! ' '^ ^^^ under such regulations, as the company shall, by 
 
 notice to be annexed to the list of tolls, appoint. 
 In default of 97. If, on demand, any person fail to pay the tolls due 
 t'oiu^Eood"* "^ respect of any carriage or goods, it shall be lawful for 
 &c. may be' tlie Company to detain and sell such carriage, or all or 
 detained and any part of such goods, or, if the same shall have been 
 removed from the premises of the company, to detain 
 and sell any other carriages or goods within such pre- 
 mises belonging to the partj^ liable to pay such tolls, and 
 out of the monies arisiug from such sale to retain the tolls 
 payable as aforesaid, and all charges and expenses of such 
 detention and sale, rendering the overplus, if any, of the 
 monies arising by such sale, and such of the carriages or 
 goods as shall remain unsold, to tlie person entitled 
 thereto, or it shall be lawful for the company to recover 
 any such tolls by action at law. 
 Account of 98. Every person being the owner or having the care
 
 8 Vict. c. 20— Railways Clauses. cxcvii 
 
 of any carriage or goods passing or being upon the rail- lading, &c. to 
 way, shall, on demand, give to the collector of tolls, at ''^ ^'^*°' 
 the places where he attends for the purpose of receiving 
 goods or of collecting tolls for the part of the railway on 
 which such carriage or goods may have travelled or be 
 about to travel, an exact account in writing signed by 
 him of the number or quantity of goods conveyed by any 
 sucli carriage, and of the point on the railway from 
 which such carriage or goods have set out or are about 
 to set out, and at what point the same are intended to be 
 unloaded or taken oft" the railway : and if the goods con- 
 veyed by any such carriage, or brought for conveyance 
 as aforesaid, be liable to the payment of diff"erent tolls, 
 then such owner or other person shall specify the re- 
 spective numbers or quantities thereof liable to each or 
 any of such tolls. 
 
 99. If any such owner or other such person fail to give Penalty for 
 such account, or to produce his way-bill or bill of lading, ""jou'nt o^ 
 to such collector or other officer or servant of the com- lading, 
 pany demanding the same, or if he give a false account, 
 or if he unload or take oft' any part of his lading or goods 
 at any other place than shall be mentioned in such ac- 
 count, with intent to avoid the payment of any tolls pay- 
 able in respect thereof, he shaii for every such oficnee 
 forfeit to the company a sura not exceeding ten pounds 
 for every ton of goods, or for any parcel not exceeding 
 one hundred weight, and so in proportion for any less 
 quantity of goods than one ton, or for any parcel exceed- 
 ing one hundred weight, (as the case maybe,) which 
 shall be upon any such carriage ; and such penalty sliall 
 be in addition to the toll to which such goods may be 
 liable. 
 
 100. If any dispute arise concerning the amount of the Disputes as 
 tolls due to the company, or concerning the charges oc- *y^'^^'^^"^ 
 casioned by any detention or sale thereof under the pro- diargeable. 
 visions herein or in the special act contained, the same 
 
 shall be settled by a justice ; and it shall be lawful tor 
 the company in the meanwhile to detain tlie goods, or (it 
 the case so require) the proceeds of the sale thereof. 
 
 101. If any diff"erence arise between any toll collector Diriorcnccs 
 or other officer or servant of the company and any owner «^«j^,^|^^ ^.^_ 
 of or person bavins the charge of any carriage passing or 
 
 being upon the railway, or of any goods conveyed or to 
 be conveyed by such carriage, respecting tlie wtjight, 
 quantity, quality, or nature of such goods, such collector 
 or other officer may lawfully detain such carnage or
 
 CXCVllI 
 
 Toll collector 
 to be liable 
 for wrongful 
 detentioo of 
 
 Appendix — Statutes. 
 
 goods, and examine, weigh, gauge, or otherwise measure 
 the same ; and if upon such measuring or examination 
 such goods appear to be of greater weight or quantity or 
 of other nature than shall have been stated in the account 
 given thereof, then the person who shall have given such 
 account shall pay, and the owner of such carriage, or the 
 respective owners of such goods, shall also, at the option 
 of the company, be liable to pay, the costs of such mea- 
 suring and examining; but if such goods appear to be of 
 the same or less weight or quantity than and of the same 
 nature as shall have been stated in such account, then the 
 company shall pay such costs, and they shall also pay to 
 such owner of or person having charge of such carriage, 
 and to the respective owners of such goods, such damage 
 (if any) as shall appear to any justice, on a summary ap- 
 plication to him for that purpose, to have arisen from such 
 detention. 
 
 102. If at any time it be made to appear to any jus- 
 tice, upon the complaint of the company, that any such 
 detention, measuring, or examining of any carriage or 
 goods, as herein-before mentioned, was without reason- 
 able ground, or that it was vexatious on the part of such 
 collector or other officer, then the collector or other officer 
 shall himself pay the costs of such detention and measur- 
 ing, and the damage occasioned thereby ; and in default 
 of immediate payment of any such costs or damage the 
 same may be recovered by distress of the goods of such 
 collector, and such justice shall issue his warrant accord- 
 ingly, 
 
 103. If any person travel or attempt to travel in any 
 carriage of the company, or of any other company ci- 
 
 fraiidron the P^rty using the railway, without having previously paid 
 company. his fare, and with intent to avoid payment thereof, or if 
 any person, having paid his fare for a certain distance, 
 knowingly and wilfully proceed in any such carriage be- 
 yond such distance, without previously paying the addi- 
 tional fare for the additional distance, and with intent to 
 avoid paj'ment thereof, or if any person knowingly and 
 wilfully refuse or neglect, on arriving at the point to 
 which he has paid his fare, to quit such can-iage, every 
 such person shall for every such offence forfeit to the com- 
 pany a sum not exceeding forty shillings, {z) 
 Detention of 104. If any person be discovered, either in or after 
 o en ers. committing or attempting to commit any such oftence as 
 
 (s) This clause does not apply to a case of a mere inability to 
 produce a ticket as distinguished from fraud. 
 
 Penally on 
 passengers 
 practising
 
 8 Vict. c. 20— Railways Clauses. cxcix 
 
 in the preceding enactment mentioned, all officers and 
 servants and other persons on behalf of the company, or 
 such other company or party as aforesaid, and all consta- 
 bles, gaolers, and peace officers, may lawfully apprehend 
 and detain such person until he can conveniently be 
 taken before some justice, or until he be otherwise dis- 
 charged by due course of law (a). 
 
 105. No person shall be entitled to carry, or to require Penalty for 
 the company to carry, upon the railway, any aquafortis, Jj""S'"g 
 oil of vitriol, gunpowder, lucifer matches, or any other goodron'ihe 
 goods which in the judgment of the company may be of "''"'*>• 
 
 a dangerous nature ; and if any person send by the rail- 
 way any such goods without distinctly marking their na- 
 ture on the outside of the package containing the same, 
 or otherwise giving notice in writing to the book-keeper 
 or other servant of the company with whom the same are 
 left, at the time of so sending, he shall forfeit to the 
 company tAventy pounds for every such oifence ; and it 
 shall be lawful for the company to refuse to take any 
 parcel that they may suspect to contain goods of a dan- 
 gerous nature, or require the same to be opened to ascer- 
 tain the fact. 
 
 106. If any collector of tolls or other officer employed Delivery of 
 by the company be discharged or suspended from his p"*jeYs'on or 
 office, or die, abscond, or absent himself, and if such col- custody of 
 lector or other officer, or the wife, widow, or any of the <o" <:o"e<:'or 
 family or representatives of any such collector or otiier 
 
 officer, refuse or neglect, after seven days notice in writ- 
 ing for that purpose, to deliver up to the company, or to 
 any person appointed by them for that purpose, any sta- 
 tion, dwelling-house, office, or other building, witli its 
 appurtenances, or any books, papers, or other matters be- 
 longing to the company in the possession or custody of 
 any such collector or officer at the occurrence of any 
 such event as aforesaid, then, upon application being 
 made by the company to any justice, it shall be lawful 
 for such justice to order any constable, with proper assist- 
 ance, to enter upon such station or otlier building, and 
 to remove any person found therein, and to take posses- 
 sion thereof, and of any such books, j)apers, or other mat- 
 ters, and to deliver the same to the company, or any 
 person appointed by them for tliat purj)ose. 
 
 107. And be it enacted, tliut the company shall every ;'^,';";;'''„''h; 
 year cause an annual account in abstract to l)e ]>rc|iiire(l, ,„„,ie „p^ „„,\ 
 showing the total receipts and expenditure of all funds ••_ J^'^'i'^ ,'^»','^'J 
 
 ilcik ofllie 
 
 (a) See note (2) in preceding page. peace, &c.
 
 cc 
 
 Bye Laws. 
 
 Company to 
 regulate the 
 use of the 
 railway. 
 
 Appendix — Statutes. 
 
 levied by virtue of this or the special act for the year 
 ending on the thirty-first day of December or some other 
 convenient day in each year, under the several distinct 
 heads of receipt and expenditure, with a statement of the 
 balance of such account, duly audited and certified by 
 the directors, or some of them, and by the auditors, and 
 shall, if required, transmit a copy of the said account, 
 free of charge, to the overseers of the poor of the several 
 parishes through which the railway shall pass, and also to 
 the clerks of the peace of the counties through which the 
 railway shall pass, on or before the thirty-first day of 
 January then next ; which last-mentioned account shall 
 be open to the inspection of the public at all seasonable 
 hours, on payment of the sum of one shilling for every 
 such inspection : provided always, that if the said com- 
 pany shall omit to prepare or transmit such account as 
 aforesaid, if required so to do by any such clerk of the 
 peace or overseers of the poor, they shall forfeit for every 
 such omission the sum of twenty pounds. 
 
 And with respect to the regulating of the use of the 
 railway, be it enacted as follows : 
 
 108. It shall be lawful for the company, from time to 
 time, subject to the provisions and restrictions in this and 
 the special act contained, to make regulations for the fol- 
 lowing purposes ; (that is to say,) 
 
 For regulating the mode by which and the speed at 
 which carriages using the railway are to be moved 
 or propelled ; 
 For regulating the times of the arrival and departure of 
 
 any such carriages ; 
 For regulating the loading or unloading of such car- 
 riages, and the weights which they are respectively 
 to carry ; 
 For regulating the receipt and delivery of goods and 
 other things which are to be conveyed upon such 
 carriages ; 
 For preventing the smoking of tobacco, and the com- 
 mission of any other nuisance, in or upon such car- 
 riages, or in any of the stations or premises occupied 
 by the company ; 
 And, generally, for regulating the travelling upon, or 
 using and working of the railway : 
 But no such regulation shall authorize the closing of the 
 railway, or prevent the passage of engines or carriages on 
 the railway, at reasonable times, except at any time when 
 
 I
 
 8 Vict. c. 20 — Railways Clauses. cc 
 
 in consequence of any of the works being out of repair, 
 or from any other sufficient cause, it shall be necessary 
 to close the railway or any part thereof. 
 
 109. For better enforcing the observance of all or any Power to 
 of such regulations it shall be lawful for the company, make regnia- 
 subject to the provisions of an act passed in the fourth jaw'. ^^ ^^^ 
 year of the reign of her present majesty, intituled "An 3 & 4 vict. 
 Act for regulating Railways," to make bye laws, («) and c. 97. 
 from time to time to repeal or alter such bye laws, and 
 
 make others, provided that such bye laws be not repug- 
 nant to the laws of that part of the United Kingdom 
 where the same are to have eifect, or to the provisions of 
 this or the special act ; and such bye laws shall be re- 
 duced into writing, and shall have affixed thereto the 
 common seal of the company ; and any person offending 
 against any such bye law shall forfeit for every such of- 
 fence any sum not exceeding five pounds, to be imposed 
 by the company in such bye laws as a penalty for any 
 such offence ; and if the infraction or non-observance of 
 any such bye law or other such regulation as aforesaid 
 be attended with danger or annoyance to the public, or 
 hindrance to the company in the lawful use of the rail- 
 way, it shall be lawful for the company summarily to in- 
 terfere to obviate or remove such dauger, annoyance, or 
 hindrance, and that without prejudice to any penalty in- 
 curred by the infraction of any such bye law. 
 
 110. The substance of such last-mentioned bye laws, Publication 
 when confirmed or allowed according to the provisions °l^"^^ *'^* 
 of any act in force regulating the allowance or confirma- 
 tion of the same, shall be painted on boards, or printed 
 
 on paper and pasted on boards, and hung up and affixed 
 and continued on the front or other conspicuous part of 
 every wharf or station belonging to the company, accord- 
 ing to the nature or subject matter of such bye laws re- 
 spectively, and so as to give public notice thereof to the 
 parties interested therein or affected thereby ; and such 
 boards shall from time to time be renewed as often as the 
 bye laws thereon or any part thereof shall bo obliterated 
 or destroyed ; and no penalty imposed by any such bye 
 law shall be recoverable unless the same shall have been 
 published and kept published in manner aforesaid. 
 
 111. Such bye laws, when so confirmed, published, S'>chbye^ 
 
 blixliiiK on 
 all parllci. 
 
 (a) See Treatise, p. 247—249. 
 
 1 1 5
 
 Leasing of 
 Railway, 
 
 Exercise of 
 power to 
 lease the 
 railway. 
 
 Powers 
 vesled in 
 the company 
 may be exer- 
 cised by the 
 lesiees. 
 
 Appendix — Statutes. 
 
 and affixed, shall be binding upon and be observed by 
 all parties, and shall be sufficient to justify all persons 
 acting under the same ; and for proof of the publication 
 of any such bye laws it shall be sufficient to prove that a 
 printed paper or painted board, containing a copy of such 
 bye laws, was affixed and continued in manner by this 
 act directed, and in case of its being afterwards displaced 
 or damaged, then that such paper or board was replaced 
 as soon as conveniently might be. 
 
 And with respect to leasing (6) the railway, be it 
 enacted as follows : 
 
 112. Where the company shall be authorized by the 
 special act to lease the raihvay or any part thereof to any 
 company or person, the lease to be executed in pursuance 
 of such authority shall contain all usual and proper 
 covenants on the part of the lessee for maintaining the 
 railway, or the portion thereof comprised in such lease, 
 in good and efficient repair and working condition dur- 
 ing the continuance thereof, and for so leaving the same 
 at the expiration of the term thereby granted, and such 
 other provisions, conditions, covenants, and agreements, 
 as are usually inserted in leases of a like nature, (c) 
 
 1 13. Such lease shall entitle the company or person to 
 whom the same shall be granted to the free use of the 
 railway or portion of railway comprised therein, and 
 during the continuance of any such lease all the powers 
 and privileges granted to and which might otherwise be 
 exercised and enjoyed by the company, or the directors 
 thereof, or their officers, agents, or servants, by virtue of 
 this or the special act, with regard to the possession, 
 enjoyment, and management of the railway, or of the 
 part thereof comprised in such lease, and the tolls to be 
 taken thereon, shall be exercised and enjoyed by the 
 lessee, and the officers and servants of such lessee, under 
 the same regulations and restrictions as are by this or the 
 special act imposed on the company, and their directors, 
 officers, and servants ; and such lessee shall, with respect 
 to the railway comprised in such lease, be subject to all 
 the obligations by this or the special act imposed on the 
 company. 
 
 (6) See 8 & 9 Vict. c. 96, post. 
 
 (c) Semble, express provision is necessary to give this power 
 to company. See Treatise, pp. 126, 127
 
 8 Vict. c. 20 — Railways Clauses. cciii 
 
 And with respect to the engines and carriages to be Carriages 
 brought on the railway, be it enacted as follows : and 
 
 114. Every locomotive steam engine to be used on the JEMgiH«. 
 railway shall, if it use coal or other similar fuel emitting Engiiies lo 
 smoke, be constructed on the principle of cousumino- and "=""'•""« ">«'"" 
 so as to consume its own smoke ; and if any eno-ine be ^"'"^^' 
 not so constructed the company or party usino- such 
 engine shall forfeit live pounds for every day durino- 
 which such engine shall be used on the railway. 
 _ 115. No loconjotive or other engine, or other descrip- Engines to be 
 tion of moving power, shall at any time be brought upon appf"**'' by 
 or used on the railway unless the same have first been ap- a,'d«"iSe 
 proved of by the company ; and within fourteen days "f approval 
 after notice given to the company by any party desirous °'^^"" 
 of bringing any such engine on the railway the company 
 shall cause their engineer or other agent to examine such 
 engine at any place within three miles distance from the 
 railway to be appointed by the owner thereof, and to 
 report thereon to the company ; and within seven days 
 after such report, if such engine be proper to be used on 
 the railway, the company shall give a certificate to the 
 party requiring the same of their approval of sucii 
 engine ; and if at any time the engineer or other agent Unfit engines 
 of the company report that any engine used upon the [nov'ea*^' 
 railway is out of repair, or unfit to be used upon the rail- 
 way, the company may require the same to be taken ott', or 
 may forbid its use upon the railway until the same sliall 
 have been repaired to the satisfaction of the company, 
 and upon the engine being so repaired the company shall 
 give a certificate to tlie party requiring the same of tiieir 
 approval of such engine ; and if any difference of 
 opinion arise between the company and tlie owner of 
 any such engine as to the fitness or unfitness thereof for 
 the purpose of being used on the railway, such difference 
 shall be settled by arbitration. 
 
 116. If any person, whether the owner or other per- Penalty for 
 son having the care thereof, bring or use upon the rail- p"'r"^[„''"Pp"*.' 
 way any locomotive or other engine, or any moving 
 power, without having first obtained sucli certificate of 
 approval as aforesaid, or if, after notice given bv the 
 company to remove any such engine from tlie railway, 
 such person do not forthwith remove tiie same, or if, 
 after notice given by the company not to use any such 
 engine on the railway, sucli person do souse sucli engine, 
 without having first repaired the same to the satisfiictioii 
 of the company, and obtained such certificate of up-
 
 Carriages to 
 be con- 
 strnctert ac- 
 cording to 
 company's 
 regulations. 
 
 Regnlations 
 10 apply also 
 to company's 
 carriages. 
 
 Penalty for 
 using impro- 
 per carriages 
 
 Owner's 
 name, &c. to 
 be registered 
 and exhibited 
 on carriages. 
 
 Appendix — Statutes. 
 
 proval, every such person shall in any of the cases afore- 
 said forfeit to the company a sum not exceeding twenty 
 pounds ; and in any such case it shall be lawful for the 
 company to remove such engine from the railway. 
 
 117. No carriage shall pass along or be upon the rail- 
 way (except in directly crossing the same, as herein or 
 by the special act authorized, ) unless such carriage be at 
 all times, so long as it shall be used or shall remain on 
 the railway, of the construction and in the condition 
 Avhich the regulations of the company for the time being 
 shall require ; and if any dispute arise between the com- 
 pany and the owner of any such carriage as to the con- 
 struction or condition thereof, in reference to the then 
 existing regulations of the company, such dispute shall 
 be settled by arbitration. 
 
 118. The regulations from time to time to be made by 
 the company respecting the carriages to be used on the 
 railway shall be drawn up in writing, and be authenti- 
 cated by the common seal of the company, and shall be 
 applicable alike to the carriages of the company and to 
 the carriages of other companies or persons using the 
 railway ; and a copy of such regulations shall, on de- 
 mand, be furnished by the secretary of the company to 
 any person applying for the same. 
 
 119. If any carriage, not being of such construction or 
 in such condition as the regulations of the company for 
 the time being require, be made to pass or be upon any 
 part of the railway (except as aforesaid), the owner 
 thereof, or any person having for the time being the 
 charge of such carriage, shall forfeit to the companj^ a 
 sum not exceeding ten pounds for every such oftence, 
 and it shall be lawful for the company to remove any 
 such carriage from the railway. 
 
 120. The respective owners of carriages using the rail- 
 way shall cause to be entered with the secretary or other 
 officer of the company appointed for that purpose the 
 names and places of abode of the owners of such car- 
 riages respectively, and the numbers, weights, and 
 gauges of their respective carnages ; and such owners 
 shall also, if so required by the company, cause the 
 same particulars to be painted in legible characters on 
 some conspicuous part of the outside of every such car- 
 riage, so as to be always open to view ; and every such 
 owner shall, whenever required by the company, permit 
 his carriage to be weighed, measured, or gauged at the 
 expense of the company.
 
 8 Vict. c. 20— Railways Clauses. ccv 
 
 121. If the owner of any carriage fail to comply with O" ""n- 
 the requisitions contained in the preceding enactment, it ^°J".i''''i"'=« 
 shall be lawful for the company to refuse to allow such be removed, 
 carriage to be brought upon the railway, or to remove 
 
 the same therefrom until such compliance. 
 
 122. If the loading of any carriage using the railway Carriages 
 be such as to be liable to collision with other carriages ""properly 
 properly loaded, or to be otherwise dangerous, or if the l?,ffe*ed in 
 person having the care of any carriage or goods upon obstruct the 
 the railway suffer the same or any part thereof to remain r"***' .'"'J 
 on the railway so as to obstruct the passage or working or removed, 
 thereof, it shall be lawful for the company to cause such 
 carriage or goods to be unloaded and removed in any 
 manner proper for preventing such collision or obstruc- 
 tion, and to detain such carriage or goods, or any part 
 thereof, until the expenses occasioned by such unloading, 
 removal, or detention be paid. 
 
 123. The company shall not be liable for any damage ^"J^.^.'!"^,""" 
 or loss occasioned by any such unloading, removal, or de- for tiamaue 
 tention as aforesaid, except for damage wilfully or neg- by such un- 
 ligently done to any carriage or goods so unloaded, re- '"' '"^' *'^" 
 moved, or detained ; nor shall they be liable for the safe 
 custody of any such carriage or goods so detained unless 
 
 the same be wrongfully detained by them, and then only 
 for so long a time as the same shall have been so wrong- 
 fully detained. 
 
 124. The respective owners of engines and carriages Owners liable 
 passing or being upon the railway shall be answerable for by ilfeTr'fer- 
 any trespass or damage done by their engines or carriages, vant». 
 
 or by any of the servants or persons employed by tliem, 
 to or upon the railway, or the machinery or works be- 
 longing thereto, or to or upon the property of any otiier 
 person ; and every such servant or other person may 
 lawfully be convicted of such trespass or damage before 
 any two justices of the peace, either by the confession 
 of the party offending, or upon the oath of some credi- 
 ble witness ; and upon such conviction every such owner 
 shall pay to the company or to the person injured, as the 
 case may be, the damage to be ascertained by such jus- 
 tices, so that the same do not exceed fifty pounds. 
 
 125. It shall be lawful for any owner of an engine or ";;";;; ^^^^^ 
 carriage, who shall pay the amount of any damage ,,,,,„„. 
 caused by the misfeasance or negligence of any servant 
 
 or other person employed by him, to recover tlie ainotint 
 so paid by him from such servant or ether person by the 
 same means as the company are enabled to recover tlic
 
 ccvi Appendix — Statutes. 
 
 amount of such damage from the owner of any engine or 
 carriage. 
 
 Arbitration. And with respect to the settlement of disputes by arbi- 
 tration, be it enacted as follows : 
 Appointment 126. When any dispute authorized or directed by this 
 of arbitrators qj. |;ijg special act, or any act incorporated therewith, to 
 lions" a1e"o be Settled by arbitration, shall have arisen, then, unless 
 be rieiermin- both parties shall concur in the appointment of a single 
 tk)n^ ^'^''"'^" arbitrator, each party, on the request of the other party, 
 shall nominate and appoint an arbitrator to whom such 
 dispute shall be referred ; and everj' appointment of an 
 arbitrator shall be made on the part of the company, 
 under the hand of the secretary or any two of the di- 
 rectors of the company, and on the part of any other 
 party under the hand of such party, or if such party be 
 a corporation aggregate, under the common seal of such 
 corporation, and such appointment shall be delivered to 
 the arbitrators, and shall be deemed a submission to ar- 
 bitration on the part of the party by whom the same 
 shall be made ; and after any such appointment shall 
 have been made, neither party shall have power to revoke 
 the same witliout the consent of the other, nor shall the 
 death of either party operate as a revocation ; and if for 
 the space of fourteen days after any such dispute shall have 
 arisen, and after a request in writing, in which shall be 
 stated the matters so required to be referred to arbitra- 
 tion, shall have been served by the one party on the 
 other party to appoint an arbitrator, such last-mentioned 
 party fail to appoint such arbitrator, then upon such 
 failure the party making the request, and having himself 
 appointed an arbitrator, may appoint such arbitrator to 
 act on behalf of both parties ; and such arbitrator may 
 proceed to hear and determine the matters which shall be 
 in dispute ; and in such case the award or determination 
 of such single arbitrator shall be final. 
 
 127. If before the matters so referred shall be deter- 
 mined any arbitrator appointed by either party die, or 
 become incapable to act, the party by whom such arbi- 
 trator was appointed may nominate and appoint in writ- 
 ing some other person to act in his place, and if for the 
 space of seven days after notice in writing from the other 
 party for that purpose he fail to do so, the remaining or 
 other arbitrator may proceed ex parte ; and every arbi- 
 trator so to be substituted as aforesaid shall have the 
 ame powers and authorities as were vested in the Ibrmer
 
 8 Vict.c. 20.— Railways Clauses. ccvii 
 
 arbitrator at the time of such his death or incapacity as 
 aforesaid. 
 
 128. Where more than one arbitrator shall have been Appointment 
 appointed, such arbitrators shall, before they enter upon "'' "'"P'"«- 
 the matters referred to them, nominate and appoint by 
 writing under their hands an umpire to decide on any 
 
 such matters on which they shall differ, or which shall 
 be referred to him under this or the special act ; and if 
 such umpire shall die, or become incapable to act, tliey 
 shall forthwith after such death or incapacity appoint 
 another umpire in his place ; and the decision of every 
 such umpire on the matter so referred to him shall be 
 final. 
 
 129. If in either of the cases aforesaid the said arbi- Board of 
 trators shall refuse, or shall for seven days after request ^onered" o 
 of either party to such arbitration neglect to appoint an appohuai? 
 umpire, the Board of Trade shall, on the application of "'"''''"«■ °" 
 either party to such arbitration, appoint an umpire ; ".^blrn.'wrs!'''' 
 and the decision of such umpire on the matters on which 
 
 the arbitrators shall differ, or which shall be referred to 
 him under this or the special act, shall be final. 
 
 130. If where a single arbitrator shall have beeu ap- in case of 
 pointed, such arbitrator shall die, or become incapable ''.'^^''' "•' 
 to act, before he shall have made his award, the matters ,"raulr, "the'' 
 referred to him shall be determined by arbitration, under maiier to 
 the provisions of this or the special act, in the same man- ^^^'" ''*' 
 ner as if such arbitrator had not been appointed. 
 
 131. If, where more than one arbitrator shall have If eiilierarbi- 
 been appointed, either of the arbitrators refuse, or for "■"""■ '••"'*' 
 seven days neglect to act, the other arbitrator may pro- o"her'u> 'pro- 
 ceed ex parte, and the decision of such other arbitrator ceetiexpane. 
 shall be as effectual as if he had been the single arbitrator 
 appointed by both parties. 
 
 132. If, where more than one arbitrator shall have u arbitrator* 
 been appointed, and where neither of tiiem shall refuse fail lo make 
 or neglect to act as aforesaid, sucli arbitrators shall fail Ji'ihi,','"""" 
 to make their award within twenty-one days after tiie iw.iity-onc 
 day on which the last of such arbitrators shall have been fn'.;\i;.r','f, ^„ 
 appointed, or within such extended time, if any, as shail i., iheutn- 
 have been appointed for that purpose by both sucli arbi- (<'"■•• 
 trators under their hands, the matter referred to tliein 
 
 shall be determined by the um])ire to be appointed as 
 aforesaid. 
 
 133. The said arbitrators or their umpire may call for Pow.r for 
 the production of any documents in the possession or "^{"I'J^J b^J"^ 
 power of either party which they or he may think ne- &c.
 
 Arbitrator 
 and umpire 
 to make de- 
 claration. 
 
 Costs to be 
 in the discre- 
 tion of the 
 arbitrators. 
 
 Submission to 
 arbitration 
 may be made 
 a rule of 
 court. 
 
 The award 
 not to be set 
 aside for 
 matter of 
 form. 
 
 Service of 
 notices upon 
 company. 
 
 Tender of 
 amends. 
 
 Appendix — Statutes. 
 
 cessary for determining the question in dispute, and may 
 examine the parties or their witnesses on oath, and ad- 
 minister the oaths necessary for that purpose. 
 
 134. Before any arbitrator or umpire shall enter into 
 the consideration of any matters referred to him, he shall, 
 in the presence of a justice, make and subscribe the fol- 
 lowing declaration ; that is to say, 
 
 ' I, A. B. do solemnlj^ and sincerely declare, that I 
 
 ' will faithfully and honestly, and to the best of my 
 
 ' skill and ability, hear and determine the matters re- 
 
 ' ferred to me, under the provisions of the act [naming 
 
 ' the special act. ^ A. B. 
 
 ' Made and subscribed in the presence of .' 
 
 And such declaration shall be annexed to the award 
 
 when made ; and if any arbitrator or umpire, having 
 
 made such declaration, shall wilfully act contrary thereto, 
 
 he shall be guilty of a misdemeanor. 
 
 135. Except where by this or the special act, or any 
 act incorporated therewith, it shall be otherwise pro- 
 vided, the costs of and attending every such arbitration, 
 to be determined by the arbitrators, shall be in the dis- 
 cretion of the arbitrators. 
 
 136. The submission to any such arbitration may be 
 made a rule of any of the superior courts, on the applica- 
 tion of either of the parties. 
 
 137. No award made with respect to anj' question re- 
 ferred to arbitration under the provisions of this or the 
 special act shall be set aside for irregulai-ity or error in 
 matter of form. 
 
 138. And be it enacted, that any summons or notice, 
 or any writ, or other proceeding at law or in equitj^, re- 
 quiring to be served upon the company, may be served 
 by the same being left at or transmitted through the post 
 directed to the principal office of the company, or one of 
 their principal offices where there shall be more than 
 one, or being given personally to the secretary, or in 
 case there be no secretary then by being given to any 
 one director of the company, (d) 
 
 139. And be it enacted, that if any party shall have 
 committed any irregularity, trespass, or other wrongful 
 proceeding in the execution (e) of this or the special act, 
 or any act incorporated therewith, or by virtue of any 
 power or authority thereby given, and if before action 
 
 (d) See Treatise, ante, pp. 383,384. 
 
 (e) See Treatise, p. 380.
 
 8 Vict. c. 20. — Railnays Clauses. ccix 
 
 brought in respect thereof such party make tender of 
 sufficient amends to the party injured, such last-men- 
 tioned party shall not recover in any such action ; and 
 if no such tender shall have been made it shall be lawful 
 for the defendant, by leave of the court where such action 
 shall be pending, at any time before issue joined to pay 
 into court such sum of money as he shall think fit, and 
 thereupon such proceedings shall be had as in other cases 
 where defendants are allowed to pay money into court. 
 
 And with respect to the recovery of damages not spe- Recovery of 
 cially provided for, and of penalties, and to the determi- Damages 
 nation of any other matter referred to justices, be it ""^ 
 enacted as follows : Penalties. 
 
 140. In all cases where any damages, costs, or ex- Provision for 
 penses are by this or the special act, or any act incorpo- f,fi^rwUe""' 
 rated therewith, directed to be paid, and the method of provided for. 
 ascertaining the amount or enforcing the payment thereof 
 
 is not provided for, such amount, in case of dispute, shall 
 be ascei'tained and determined by two justices ; and if 
 the amount so ascertained be not paid by the company 
 or other party liable to pay the same within seven days 
 after demand, the amount may be recovered by distress 
 of the goods of the company or other party liable as 
 aforesaid ; and the justices by whom the same shall have 
 been ordered to be paid, or either of them, or any other 
 justice, on application, shall issue their or his warrant 
 accordingly. 
 
 141. If sufficient goods of the company cannot be Disiress 
 found whereon to levy any such damages, costs, and ex- ,"ria"urer.' 
 penses payable by the company, the same may, if the 
 amount thereof do not exceed twenty pounds, be re- 
 covered by distress of the goods of the treasurer of the 
 company ; and the justices aforesaid, or eitlier of them, 
 
 on application, shall issue their or his warrant accord- 
 ingly ; but no such distress shall issue against tlic goods 
 of such treasurer unless seven days previous notice in 
 writing, stating the amount so due, and demanding pay- 
 ment thereof, have been given to such treasurer or left 
 at his residence ; and if such treasurer pay any money 
 under such distress as aforesaid lie may retain the amount 
 so paid by him, and all cost and expenses occasioned 
 thereby, out of any money belonging to the company, 
 coming into his custody or control, or he may sue tlie 
 company for the same. 
 
 142. Where in this or the special act any rpiestion ot m.iIi.mI or
 
 Penalties to 
 be summarily 
 recoveted 
 before two 
 justices. 
 
 Appendix — Statutes, 
 
 compensation, expenses, charges, or damages, or other 
 matter is referred to the determination of any one justice 
 or more, it shall be lawful for any justice, upon the ap- 
 plication of either party, to summon the other party to 
 appear before one justice, or before two justices, as the 
 case may require, at a time and place to be named in 
 such summons ; and upon the appearance of such par- 
 ties, or in the absence of any of them, upon proof of due 
 service of the summons, it shall be lawful for such one 
 justice, or such two justices, as the case may be, to hear 
 and determine such question, and for that purpose to 
 examine such parties or any of them, and their witnesses, 
 on oath ; and the costs of every such inquiry shall be in 
 the discretion of such justices, and they shall determine 
 the amount thereof. 
 
 143. The company shall publish the short particulars 
 of the several offences for which any penalty is imposed 
 by this or the special act, or by any bye law of the com- 
 pany affecting other persons than the shareholders, offi- 
 cers, or servants of the company, and of the amount of 
 every such penalty, and shall cause such particulars to 
 be painted on a board, or printed upon paper and pasted 
 thereon, and shall cause such board to be hung up or 
 affixed on some conspicuous part of the principal place of 
 business of the company, and where any such penalties 
 are of local application shall cause such boards to be 
 affixed in some conspicuous place in the immediate neigh- 
 bourhood to which such penalties are applicable or have 
 reference ; and such particulars shall be renewed as often 
 as the same or any part thereof is obliterated or destroyed ; 
 and no such penalty shall be recoverable unless it shall 
 have been published and kept published in the manner 
 hereinbefore required. 
 
 144. If any person pull down or injure any board put 
 up or affixed as required by this or the special act for the 
 purpose of publishing any bye law or penalty, or shall 
 obliterate any of the letters or figures thereon, he shall 
 forfeit for every such offence a sum not exceeding five 
 pounds, and shall defray the expenses attending the 
 restoration of such board. 
 
 145. Every penalty or forfeiture imposed by this or 
 the special act, or by any bye law made in pursuance 
 thereof, the recovery of which is not othersv ise provided 
 for, may be recovered by summary proceeding before 
 two justices ; and on complaint being made to any justice 
 he shaU issue a summons requiring the party complained
 
 8 Vict. c. 20— Railways Clauses. ccxi 
 
 against to appear before two justices at a time and place 
 to be named in such summons, and every such summons 
 shall be served on the party offending either in person or 
 by leaving the same with some inmate at his usual place 
 of abode ; and upon the appearance of the party com- 
 plained against, or in his absence, after proof of the due 
 service of such summons, it shall be lawful for any two 
 justices to proceed to the hearing of the complaint, and 
 that although no information in writing or in print shall 
 have been exhibited before them : and upon proof of the 
 offence, either by the confession of the party complained 
 against, or upon the oath of one credible witness or 
 more, it shall be lawful for such justices to convict the 
 offender, and upon such conviction to adjudge the of- 
 fender to pay the penalty or forfeiture incurred, as well 
 as such costs attending the conviction as such justices 
 shall think fit. 
 
 146. If forthwith upon any such adjudication as afore- Penalties to 
 said the amount of the penalty or forfeiture, and of such ^* '''^'*-''* ''> 
 costs as aforesaid, be not paid, the amount of such penalty 
 
 and costs shall be levied by distress, and such justices, or 
 either of them, shall issue their or his warrant of distress 
 accordingly. 
 
 147. It shall be lawful for any such iustice to order impnjon- 
 
 tncnt In 
 
 or 
 
 any offender so convicted as aforesaid to be detained and ^^eUaU 
 kept in safe custody until return can be conveniently distrets. 
 made to the warrant of distress to be issued for levying 
 such penalty or forfeiture and costs, unless the offender 
 give sufficient security, by way of recognizance or otlier- 
 wise, to the satisfaction of the justice, for his appearance 
 before him on the day appointed for such return, such 
 day not being more than eight days from the time of 
 taking such security ; but if before issuing such warrant 
 of distress it shall appear to the justice, by the admission 
 of the offender or otherwise, that no sufficient distress can 
 be had within the jurisdiction of such justice whereon to 
 levy such penalty or forfeiture and costs, he may, if he 
 thinks fit, refrain from issuing such warrant of distress; 
 and in such case, or if such warrant shall have been 
 issued, and upon the return thereof such insufficiency as 
 aforesaid shall be made to appear to the justice, tlien 
 such justice shall by warrant cause such offender to he 
 committed to gaol, there to remain witliout bail for any 
 term not exceeding three months, unless such ])enalty or 
 forfeiture and costs be sooner paid and sf.tisfied. 
 
 148. Where in this or the special act, or any act in- j'^'"J;7jJ;;.'j"
 
 Appendix — Statutes. 
 
 corporated therewith, any sum of money, whether in the 
 nature of penalty or otherwise, is directed to be levied 
 by distress, such sum of money shall be levied by dis- 
 tress and sale of the goods and chattels of the party liable 
 to pay the same ; and the overplus arising from the sale 
 of such goods and chattels, after satisfying such sum of 
 money, and the expenses of the distress and sale, shall be 
 returned, on demand, to the party whose goods shall have 
 been distrained. 
 
 149. No distress levied by virtue of this or the special 
 . act, or any act incorporated therewith, shall be deemed 
 unlawful, nor shall any party making the same be 
 deemed a trespasser, on account of any defect or want of 
 form in the summons, conviction, warrant of distress, or 
 other proceeding relating thereto, nor shall such party 
 be deemed a trespasser ab initio on account of any irre- 
 gularity afterwards committed by him, but all persons 
 aggrieved by such defect or irregularity may recover full 
 satisfaction for the special damage in an action upon the 
 case. (/) 
 
 loO. The justices by whom any such penalty or for- 
 feiture shall be imposed may, where the application 
 thereof is not otherwise provided for, award not more 
 than one half thereof to the informer, and shall award 
 the remainder to the overseers of the poor of the parsih in 
 which the offence shall have been committed, to be ap- 
 plied in aid of the poor's rate of such parish, or if the 
 place wherein the offence shall have been committed shall 
 be extra-parochial, then such justices shall direct such 
 remainder to be applied in aid of the poor's rate of such 
 extra-parochial place, or, if there shall not be any poor's 
 rate therein, in aid of the poor's rate of any adjoining 
 parish or district. 
 
 151. No person shall be liable to the payment of any 
 penalty or forfeiture imposed by virtue of this or the 
 special act, or any act incorporated therewith, for any 
 offence made cognizable before a justice, unless the com- 
 plaint respecting such offence shall have been made before 
 such justice within six months next after the commission 
 of such offence. 
 
 152. If, through any act, neglect, or default on ac- 
 count whereof any person shall have incurred any penalty 
 imposed by this or the special act, any damage to the 
 property of the company shall have been committed by 
 such person, he shall be liable to make good such damage 
 as well as to pay such penalty ; and the amount of such
 
 8 Vict. c. 20 — Railways Clauses. ccxiii 
 
 damages shall, in case of dispute, be determined by the 
 justices by whom the party incurring such penalty shall 
 have been convicted ; and on nonpayment of such da- 
 mages, on demand, the same shall be levied by distress 
 and such justices, or one of them, shall issue their or his 
 warrant accordingly. 
 
 153. It shall be lawful for any justice to summon any Penalty on 
 person to appear before him as a witness in any matter ^'""^sses 
 in which such justice shall have jurisdiction under the "auu!"^ **** 
 provisions of this or the special act, at a time and place 
 mentioned in such summons, and to administer to him an 
 
 oath to testify the truth in such matter ; and if any per- 
 son so summoned shall, without reasonable excuse, refuse 
 or neglect to appear at the time and place appointed for 
 that purpose, having been paid or tendered a reasonable 
 sum for his expenses, or if any person appearing shall 
 refuse to be examined upon oath or to give evidence 
 before such justice, every such person shall forfeit a sum 
 not exceeding five pounds for every such offence. 
 
 154. It shall be lawful for any officer or agent of the Transient of. 
 company, and all persons called by him to his assist- fenders, 
 ance, to seize and detain any person who shall have 
 committed any offence against the provisions of this or 
 
 the special act, and whose name and residence shall be 
 unknown to such officer or agent, and convey Jiim, with 
 all convenient despatch, before some justice, without any 
 warrant or other authority than this or the special act ; 
 and such justice shall proceed with all convenient de- 
 spatch to the hearing and determining of the complaint 
 against such offender. 
 
 155. The justices before whom any person shall be Form of con- 
 convicted of any offence against this or the special act, ^'cn"". 
 
 or any act incorporated therewith, may cause the con- 
 viction to be drawn up according to tlie form in the 
 schedule to this act annexed. 
 
 156. No proceeding in pursuance of this or the special |^™^^,*^^"2» 
 act, or any act incorporated therewitli, siiall he. (juashed qu,,|"i.rt'^for 
 or vacated for want of form, nor shall the same be re- want of form, 
 moved by certiorari or otherwise into any of the superior **=• 
 courts, (g) 
 
 157. If any party shall feel aggrieved by tlie determi- Panie. al- 
 nation or adjudication of any justice \yitli respect to J';^."'|',„'° "■'■ 
 any penalty or forfeiture under the provisions of tliis or q.Mrivr •<■»• 
 the special act, or any act incorporated therewith, such j;;^";;;*^^*^,^ 
 
 {g) See Treatise, p. 402—404.
 
 ccxiv Appendix — Statutes. 
 
 party may appeal to the general quarter sessions for the 
 county or place in which the cause of appeal shall have 
 arisen ; but no such appeal shall be entertained unless it 
 be made within four months next after the making of 
 such determination or adjudication, nor unless ten days 
 notice in writing of such appeal, stating the nature and 
 grounds thereof, be given to the party against whom the 
 appeal shall be brought, nor unless the appellant forth- 
 with after such notice enter into recognizance, with two 
 sufficient sureties, before a justice, conditioned duly to 
 prosecute such appeal, and to abide the order of the court 
 thereon. (h) 
 Coiirttomake 158. At the quarter sessions for which such notice 
 iiley ihfnk ^' ®^^^^^ ^^ given the court shall proceed to hear and deter- 
 reasonabie. mine the appeal in a summary way, or they may, if they 
 think fit, adjourn it to the following sessions; and upon 
 the hearing of such appeal the court may, if they think 
 fit, mitigate any penalty or forfeiture, or they maj' con- 
 firm or quash the adjudication, and order any monej" paid 
 by the appellant, or levied by distress upon his goods, to 
 be returned to him, and may also order such further sa- 
 tisfaction to be made to the party injured as they may 
 judge reasonable ; and they may make such order con- 
 cerning the costs, both of the adjudication and of the 
 appeal, as they may think reasonable. 
 Receiver of 159. Provided always, and be it enacted, that not- 
 nieiropoiitan withstanding anj^ thing herein or in the special act, or 
 to" receive "'^' any act incorporated therewith, contained, every penalty 
 penalties in- or forfeiture imposed by this or the special act, or any 
 his'(r''t^'''''° ^^* incorporated therewith, or by any bye law in pur- 
 suance thereof, in respect of any offence which shall take 
 place within the metropolitan police district, shall be re- 
 covered, enforced, accounted for, and, except where the 
 application thereof is otherwise specially provided for, 
 shall be paid to the receiver of the metropolitan police 
 district, and shall be applied in the same manner as 
 penalties or forfeitures, other than fines upon drunken 
 persons, or upon constables for misconduct, or for assaults 
 upon police constables, are directed to be recovered, en- 
 forced, accounted for, paid, and applied by an act passed 
 in the third year of the reign of her present Majesty, in- 
 2 & 3 Vict, tituled " An Act for Regulating the Police Courts in the 
 •=• ''• Metropolis ;" and every order or conviction of any of 
 
 the police magistrates in respect of any such forfeiture or 
 penalty shall be subject to the like appeal, and upon the 
 same terms, as is provided in respect of any order or con-
 
 8 Vict. e. 20 — Railways Clauses. ccxv 
 
 viction of any of the said police magistrates by the said 
 last-mentioued act ; and every magistrate by wliom any 
 order or conviction shall have been made shall have the 
 same povi^er of binding over the witnesses who shall have 
 been examined, and such witnesses shall be entitled to 
 the same allowance of expenses as he or they would have 
 had or been entitled to in case the order, conviction, and 
 appeal had been made in pursuance of the provisions of 
 the said last-mentioned act. 
 
 160. And be it enacted, that every person who, upon Persons 
 any examination upon oath, under the provisions of this ^'*'"? '^*''* 
 or the special act, or any act incorporated therewith, nrbie'uf 
 shall wilfully and corruptly give false evidence, shall be penniiies of 
 liable to the penalties of wilful and corrupt perjury. perjury. 
 
 161. And be it declared and enacted, that all sums of Money paid 
 money which have been or shall be paid into the bank of '"'" ''"■ ^^"^ 
 Ireland in the name and with the privity of the account- be exelnpt'" 
 ant general of the Court of Chancery in Ireland, under •>">" nshera' 
 the provisions of an act passed in the second year of the P°""'''ee- 
 reign of her present majesty, intituled " An Act to pro- i & 2 Vice, 
 vide for the Custody of Certain Monies paid in pursuance '" ^^^' 
 
 of the Standing Order of either House of Parliament by 
 Subscribers to Works or Undertakings to be effected 
 under the Authority of Parliament," shall and may be 
 paid out and applied under any order of the said Court 
 of Chancery exempt fi'om ushers' poundage. 
 
 And with respect to the provision to be made for af- Access to 
 fording access to the special act by all parties interested, special Act. 
 be it enacted as follows : 
 
 162. The company shall at all times after the expira- Copies of^ ^^ 
 tion of six months after the passing of the special act be"e|„'I,'j,V 
 keep in their principal office of business a copy of the .lepooiied, 
 special act, printed by the printers to her majesty, or '"'i;'/^'.""'' 
 some of them ; shall also within the space of sucli six ,|„.cie(i. 
 months deposit in the office of each of the clerks of tlie 
 
 peace of the several counties into which tlie works shall 
 extend a copy of such special act, so printed as afore- 
 said ; and the said clerks of the peace shall receive, and 
 they and the company respectively shall retain, tiie said 
 copies of the special act, and shall permit all j)ersoiis in- 
 terested to inspect the same, and make extracts or cojiics 
 therefrom, in the like manner, and upon the like t(;rnis, 
 and under the like penalty for default, as is ])rovide(l m 
 the case of certain plans and sections by an act jiassed in 
 the first year of the reign of her present Majesty, inti-
 
 7 W. 4 & 1 
 
 Vict. c. 83. 
 
 Penalty on 
 company fail- 
 ing to keep 
 or deposit 
 such copies. 
 
 Act not to 
 extend to 
 Scotland. 
 
 Act may be 
 amended this 
 
 session. 
 
 Ajypendix — Statutes. 
 
 tuled " An Act to compel Clerks of the Peace for 
 Counties, and other Persons, to take the Custody of 
 such Documents as shall be directed to be deposited 
 with them under the Standing Orders of either House 
 of Parliament." 
 
 163. If the company shall fail to keep or deposit, as 
 hereinbefore mentioned, any of the said copies of the 
 special act, they shall forfeit twenty pounds for every 
 such offence, and also five pounds for every day after- 
 wards during which such copy shall be not so kept or 
 deposited. 
 
 164. And be it enacted, that this act shall not extend 
 to Scotland. 
 
 165. And be it enacted, that this act may be amended 
 or repealed by any act to be passed in the present session 
 of parliament. 
 
 SCHEDULE referred to by the foregoing Act. 
 
 to wit. 
 
 Be it remembered, tliat on the day of in the year 
 
 of our Lord A. B. is convicted before us, C, D., two of 
 
 her majesty's justices of the peace for the county of [here 
 
 describe lite offence generuily, and ihe time and place when and 
 where committed], contrary to the [here name the special act]. 
 Given under our hands and seals the day and year first above 
 
 written. 
 
 CD. 
 
 I
 
 8 & 9 Vict. c. 96—RaUwai/s Clauses. 
 
 8 & 9 Vict. c. 96. 
 
 An Act to restrict the Powers of selling or leasing 
 Railways contained in certain Acts of Parliament 
 relating to such Railways. [4th August, 184o.] 
 
 Whereas provisions have been introduced in various 
 acts of parliament, during the present session of parlia- 
 liament, relating to railways, giving to railway companies 
 general powers of granting or accepting a lease, sale, or 
 transfer of their own or other lines of railway ; and it is 
 expedient that such powers should he restrained : Be it 
 therefore enacted by the Queen's most excellent majesty, 
 by and with the advice and consent of the lords spiritual 
 and temporal, and commons, in this present parliament 
 assembled, and by the authority of the same, that it sliall No railway 
 not be lawful for the companv of proprietors of anv rail- '^""•I'^ny "<> 
 
 , . p ^ J f-i- .*' .gram or ac- 
 
 way, by virtue oi any powers contained m any act passed cept a lease 
 in the present session, to make or grant, or for any other "■■ ""ansier of 
 railway company or party, by virtue of any such powers, unJesT'umier 
 to accept, a sale, lease, or other transfer of any railway, a disiinct 
 unless under the authority of a distinct provision in some a,',"acJ'^" "[. 
 act of parliament to that effect specifying by name the tying tbe par- 
 railway to be so leased, sold, or transferred, and the com- •'«'• 
 pany or party by whom such lease, sale, or transfer may 
 be respectively made, granted, or accepted. 
 
 II'
 
 ccxvib Appendix — Statutes. 
 
 8 & 9 Vict. c. 11^. 
 
 An Act to facilitate the Admission in Evidence of 
 certain official and other Documents. 
 
 [8th August, 1845.] 
 
 Whereas it is provided by many statutes that various 
 certificates, official and public documents, documents and 
 proceedings of corporations and of joint stock and other 
 companies, and certified copies of documents, bye laws, 
 entries in registers and other books, sliall be receivable in 
 evidence of certain particulars in courts of justice, pro- 
 vided they be respectively authenticated in the manner 
 prescribed by such statutes: And whereas the beneficial 
 effect of these provisions has been found by experience to 
 be greatly diminished by the difficulty of proving that the 
 said documents are genuine ; and it is expedient to faci- 
 litate the admission in evidence of such and the like 
 documents : be it therefore enacted by the Queen's most 
 excellent majesty, by and with the advice and consent of 
 the lords spiritual and temporal, and commons, in this 
 present parliament assembled, and by the authority of the 
 Certain do- Same, that whenever by any act now in force or hereafter 
 cuments to be ^q be in forcc any certificate, official or public docu- 
 evWence '" ment, or document or proceeding of any corporation or 
 wiihont proof joint stock or other company, or any certified copy of 
 of seal or sig- ^ document, bye law, entry in any reojister or other 
 
 nature, &C.OI J p *^ i i^ i "li i ^ • , i . 
 
 person sign- book, or 01 any other proceeding, shall be receivable in 
 ing the same, evidence of any particular in any court of justice, or 
 before any legal tribunal, or either house of parliament, 
 or any committee of either house, or in any judicial 
 proceeding, the same shall respectivelj'^ be admitted in 
 evidence, provided thej' respectively purport to be sealed 
 or impressed with a stamp, or sealed and signed, or signed 
 alone, as required, or impressed with a stamp and signed, 
 as directed by the respective acts made or to be here- 
 after made, without any proof of the seal or stamp, 
 where a seal or stamp is necessary, or of the signature or 
 of the official character of the person appearing to have 
 signed the same, and without any further proof thereof
 
 8 Sf 9 Vict. c. 113 — Admission of Documents. ccxvie 
 
 in every case in which the original record could have 
 been received in evidence. 
 
 2. And be it enacted, that all courts, judges, justices, Courts &r. 
 masters in Chancery, masters of courts, commissioners ".* '^""'j'"''' 
 judicially acting, and other judicial officers, shall hence- si^l "(',',re o"' 
 forth take judicial notice of the signature of any of the ^qmiy or 
 equity or common law judges of the superior courts at ^„j"'""'' ' '^ 
 Westminster, provided such signature be attached or ap-''" *'"^'' 
 pended to any decree, order, certificate, or other judicial 
 
 or official document. 
 
 3. And be it enacted, that all copies of private and Copies of 
 local and personal acts of parliament not public acts, if [Jlini'^rt''b"' 
 purporting to be printed by the Queen's printers, and all Q»^L'i ^ 
 copies of the journals of either House of Parliament, and !"■'"|<^'•■ 
 
 of royal proclamations, purporting to be printed by the pa"iia''i,i',."[ 
 printers to the Crown or by the printers to either House «"i'i pfcla- 
 of Parliament, or by any or either of them, shall be ad- "h''''""k, 
 
 1 . , I PI 11 -1 • . aaiiiisaible as 
 
 mitted as evidence thereot by all courts, judges, justices, evidence. 
 and others, without any proof being given that such 
 copies were so printed. 
 
 4. Provided always, and be it enacted, that if any Persons 
 person shall forge the seal, stamp, or signature of any 'ofsiins ^^eai, 
 such certificate, official or public document, or document nrtiTre'oi cur- 
 or proceeding of any corporation or joint stock or other i.iii; <iocii- 
 company, or of any certified copy of any document, bye pi^i'j'J'aliy 
 law, entry in any register or otiier book, or otiier pro- priva e act 
 ceeding as aforesaid, or shall tender in evidence any such ""'' '"''"= 
 certificate, official or public document, or document or g,','iViy"of 
 proceeding of any corporation or joint stock or other felony, 
 company, or any certified copy of any document, bye law, 
 
 entry in any register or other book, or of any other pro- 
 ceeding, with a false or counterfeit seal, stamp, or signa- 
 ture thereto, knowing the same to be false or counterfeit, 
 whether such seal, stamp, or signature be tliose of or re- 
 lating to any corporation or company already established, 
 or to any corporation or company to be hereafter esta- 
 blished, or if any person shall forge the signature of any 
 such judge as aforesaid, to any order, decree, certificate, 
 or other judicial or official document, or shall tender in 
 evidence any order, decree, certificate, or otli(;r judicial 
 or official document with a false or counterfeit signature 
 of any such judge as aforesaid thereto, knowing tin; same 
 to be false or counterfeit, or if any jx^rson shall i)rint any 
 copy of any private act or of the journals of eitiier Ifousc 
 of Parliament, which copy shall falsely purport to iiavc 
 been printed by the printers to the Crown, or by the
 
 ccxvitZ 
 
 Not to 
 extend lo 
 Scotland. 
 Alieraiion 
 of Act. 
 
 Commence- 
 ment of act. 
 
 Appendix — Statutes. 
 
 printers to either House of Parliament, or by any or 
 either of them, or if any person shall tender in evidence 
 any such copy, knowing that the same was not printed 
 by the person or persons by whom it so purports to have 
 been printed, everj' such person shall be guilty of felony, 
 and shall upon conviction be liable to transportation for 
 seven years, or to imprisonment for any term not more 
 than three nor less than one year, with hard labour : 
 Provided also, that whenever any such document as be- 
 fore mentioned shall have been received in evidence by 
 virtue of this act, the court, judge, commissioner, or 
 other person officiating judicially who shall have ad- 
 mitted the same, shall, on the request of any party against 
 whom the same is so received, be authorized, at its or at 
 his own discretion, to direct that the same shall be im- 
 pounded, and be kept in the custody of some officer of 
 the court or other proper person, until further order touch- 
 ing the same shall be given, either by such court, or the 
 court to which such master or other officer belonged, or 
 by the persons or person who constituted such court, or 
 by some one of the equity or common law judges of the 
 superior courts at Westminster on application being made 
 for that purpose. 
 
 5. And be it enacted, that this act shall not extend to 
 Scotland. 
 
 6. And be it enacted, that this act may be repealed, 
 altered, or amended during this present session of parlia- 
 ment. 
 
 7. And be it enacted, that this act shall take effect 
 from the first day of November next after the passing 
 thereof.
 
 APPENDIX 11. 
 
 REPORTS OF PROCEEDINGS 
 
 BEFORE 
 
 Committees oC f^ousic of Commons. 
 
 SELECT COMMITTEE ON GROUP (X) OF RAILWAYS, 
 
 COMPRISING 
 
 1. London and York. 
 
 2. Cambridge and Lincoln. 
 
 3. Direct Northern (No. 2). 
 
 4. Eastern Counties (Cambridge and Huntingdon). 
 
 5. Eastern Counties (Ely and Whittlesea). 
 
 6. Eastern Counties (Hertford and Biggleswade). 
 
 7. Midland Railways Extension (Swinton and Lincoln). 
 
 8. Midland Railways Extension (Lincoln and Ely). 
 
 9. Sheffield and Lincolnshire Junction. 
 
 10. York and North Midland and Doncaster Extension. 
 
 11. Tottenham and Farringdon Street Junction. 
 
 Upon the meeting of the committee the titles of the above 
 projects, &c., referred to the committee, were read, as like- 
 wise the petitions against them respectively. 
 
 Parties were informed that the committee would require 
 every petitioner against any of the bills or ])rqiccts l)efore 
 the committee then to enter an appearance if they proposed 
 to proceed with their case in opposition to the bill, and any 
 petitioner failing to do so would not be permitted to appear 
 at any subsequent stage of the proceedings, (a) 
 
 (o) Semble this requisition did not apply to the case of parties, 
 who at the time of the meeting of the committee liad presented no 
 petition, by reason of the project, &c., against which they wished 
 to petition, not having then attained the form of a bill, &c. ; but 
 it was competent for such parties, on subsequently presenting 
 their petition within the time limited liy the resolutions of the 
 house, to appear accordingly. (See the case of -Mr. Mas, post, 
 p. ccxxxv., and that of ftlr. Dimsdale, in Group (S), Supp. 
 to Votes, 1845, p. 608.) Tetitioners to obtain a hearing must 
 not only have taken care to enter an appearance in pursuance of 
 the above requisition, but must likewise have appeared and iJe- 
 
 K K
 
 ccxviii Appendix. 
 
 The room was cleared. 
 
 The parties were called in, and counsel having stated, in 
 answer to a question from the chairman " Whether parties 
 had agreed as to the order of precedence in which the seve- 
 ral bills and projects should be proceeded with," that it was 
 the general wish that the Ely and Whittlesea deviation, 
 being virtually unopposed, should be first considered. 
 
 The loom was cleared. 
 
 The committee deliberated and resolved, " That the Ely 
 and Whittlesea should be first proceeded with, and with re- 
 gard to the other bills and projects to group in one class the 
 London and York Railway, Cambridge and Lincoln Rail- 
 •way, Direct Northern Railway, the two Midland Railways 
 Extension, the Sheffield and Lincolnshire, the York and 
 North Midland (Doncaster Extension), and the Tottenham 
 and Farringdon Street Junction Railway ; and that that 
 class should be next proceeded with." 
 
 " That the London and York line be first taken into con- 
 sideration." Parties were called in and informed thei-eof. 
 
 Counsel applied to the committee to include the Eastern 
 Counties (Hertford and Biggleswade) in the first sub- 
 group, (t) . . 
 
 The Committee delibei-ated, and decided against the ap- 
 plication. 
 
 The Committee then proceeded with 
 
 The Eastern Counties {Eli/ and IV/nttksea) Bill. 
 
 Mr. Wells stated, on behalf of the Bedford Level Corpo- 
 ration, who had pi-esented a petition against the bill, that 
 he had no opposition to offer to the passing of the pi-eamble. 
 
 Mr. Hildyard stated the case in fdvour of the bill, and 
 called witnesses in proof of the preamble, and the matters 
 required to be examined into by committees on railway 
 bills. 
 
 The preamble was read and agreed to. 
 
 raanded a hearing while the matters against which their petition 
 was directed were still under the deliberation of the committee. 
 For instance, the committee on Group (D) refused to hear 
 counsel for the IManchester, Bolton and Bury Canal Com- 
 pany, against certain clauses of the Blackburn, £>:c., Railwaj- 
 Bill, neither counsel nor agent having appeared when the clauses 
 in question were regularly considered and agreed to by the com- 
 mittee. 
 
 (b) Applications of this kind to shift bills from one sub-group 
 to another, or to bring a bill on in a particular stage of the pro- 
 ceedings, &.C., were of constant occurrence before committees.
 
 Proceedings before Commltlecs. ccxix 
 
 The committee next went through the clauses of the bill, 
 paragraph by paragraph, inade amendments, and added 
 clauses and considered and agreed to their report. 
 
 The committee then proceeded to the consideration of the 
 first sub-group, commencing with the 
 
 Lojidon and York Bill. 
 
 The petitioners against the bill were required severally 
 to state whether they opposed the preamble of the bill, and 
 if so to give in the names of their respective counsel. 
 
 Mr. Crowder and Mr. Pickering stated that they ap- 
 peared against the preamble on behalf of Sir William M. 
 Milner, a petitioner against the bill, and various others did 
 the same on behalf of different petitioners. 
 
 The agents for the remaining petitions stated that thev 
 did not at pi'esent appear further in opposition to the bill. ' 
 
 Mr. Serjeant Wrangham then proceeded to state the case 
 in favour of the bill. 
 
 On the conclusion of his address, the counsel for the Shef- 
 field and Lincolnshire line applied to the committee for the 
 purpose of procuring their recommendation to the opposite 
 counsel, to inform him of the time when that portion of 
 theii" case, which competed with the scheme of tlic appli- 
 cant's clients would be taken, on the ground that they had 
 many witnesses in tovv'U at a great expense. The committee 
 declined to interfere, leaving it to be arranged between 
 the counsel, (c) 
 
 The counsel of the promoters then proceeded with the 
 general evidence as to the merits of their line, showing 
 the advantages it was calculated to confer on the districts it 
 traversed. For this purpose they called a great variety of 
 
 (c) In the committee on Group (KK), Mr. Calvert, on the 
 part of the promoters of the Liverpool, Ormskirk and Preston 
 Railway, applied to the committee for their decision as to 
 whether the portions of the schemes comprehended in tlie Liver- 
 pool and Manchester Railway Bill miglit not be divided so as to 
 allow him to withdraw from the connnittee for the present, ana to 
 leave the case to be conducted as between the Liverpool and 
 Manchester Railway Company and tlie promoters of the Liver- 
 pool and Bury Railway. 
 
 Mr. Lowndes, on the part of the promoters of the Liverpool 
 and Manchester Railway Bill, contended that lie should be al- 
 lowed to open his whole case. The committee decided that they 
 would not interfere with the manner in which Mr. Lowndes 
 might desire to open his case. 
 
 K K 2
 
 ccxx Ai^pendix. 
 
 persons locally interested in the different parts of the coun- 
 try traversed by their line to speak to the state of trade, 
 agriculture, &c., throughout the districts in question, the 
 quantity and quality of their products, the inadequacy of 
 the existing means of traffic and communication, the in- 
 creased facility in that respect offered by the line of the pro- 
 moters, &c. The witnesses were severally cross-examined 
 by the counsel opposing the bill. 
 
 At the close of the examination in chief of the first wit- 
 ness called for this purpose, Mr. AVells, for the Eastern 
 Counties Railway, claimed a right to cross-examine the wit- 
 ness. 
 
 Mr. Serjeant Kinglake, on behalf of the promoters, ob- 
 jected to Mr. Wells' cross-examination on the ground that 
 neither of the Eastern Counties' lines had been placed in the 
 sub-group under consideration by the committee as a com- 
 peting line with the London and York. 
 
 Mr. Austin, on behalf of the promoters of the Eastern 
 Counties schemes, thereupon made an application to the 
 committee that they might be included in the sub-group 
 under consideration, on the ground that they were distinctly 
 competing schemes with the others already in that sub- 
 group ; and if they were excluded they would of course be 
 debarred from cross-examination of the witnesses brought 
 forward in favour of the rival schemes. 
 
 The committee resolved, " That the Eastern Counties 
 schemes, viz. the Cambridge and Huntingdon and the 
 Hertford and Biggleswade branches, should be added to the 
 sub-group ] ." 
 
 The chairman was at the same time insti-ucted to in- 
 timate to Mr. Austin that he must confine himself to points 
 affecting the particular merits of those branches. 
 
 The witness was then cross-examined by Mr. Wells. 
 
 On Mr. Cockburn, on the part of the Direct Northern, 
 rising to cross-examine the witness, 
 
 Mr. Serjeant Kinglake, on behalf of the London and 
 York, objected to Mr, Cockburn's cross-examining, on the 
 ground that in the case of the Direct Northern, the Stand- 
 ing Orders Committee having reported to the house that 
 the standing orders had not been complied with, and that 
 they were of opinion that the standing orders ought not to 
 be dispensed with, the Direct Northern could not be con- 
 sidered as having any locus standi before the committee. 
 
 The committee resolved, " That the Direct Northern be 
 admitted as a party before the committee." 
 
 Among the witnesses called to speak to this part of the
 
 Proceedings before Committees. ccxxi 
 
 promoters' case, was one who gave evidence as to the 
 reduction of the charges for conveyance of a particnlar ar- 
 ticle that would ensue, if the London and York Railway 
 were made. It appeared, however, that he did not know 
 the exact maximum of tolls proposed to be charged per mile 
 by the London and York, and therefore could not state 
 the exact data on which his calculations as to the reduction 
 were made. The committee suggested to the promoters 
 that they should furnish the committee with positive evidence 
 on this point. The evidence, however, of the witness was 
 permitted to be taken, subject to the condition of the re- 
 quisite evidence on the subject of the tolls being given after- 
 wards. 
 
 _Mr. Serjeant Kinglake, for the promoters, stated that the 
 evidence of Mr. Richard Hervey, of Lincoln, was necessary 
 to the establishment of the case in favour of the bill, but that 
 the promoters were unable to procure his attendance by the 
 ordinary means, and they had now to request that the com- 
 mittee would apply to the house for an order to enforce his 
 attendance. 
 
 Mr. Rose (the solicitor for the London and York line) 
 was called and examined relative to the application to Mr. 
 Hervey. 
 
 The chairman was instructed to report the case to the 
 house. 
 
 Mr. Paget (on behalf of the London and York) having 
 stated in the course of the proceedings that he proposed to 
 divide his traffic case, and give evidence then as to the dis- 
 trict between Huntingdon and London, 
 
 The counsel for the various competing sclicmcs objected 
 to the proposed course, and contended that tlie traffic evi- 
 dence should be given on the whole line. 
 
 The committee resolved, " That they would leave counsel 
 for the bill to conduct the case as they thought most {d) ad- 
 visable." 
 
 Mr. Serjeant Allen (who appeared on behalf of certain 
 landowners opposed to the Sheffield and Liiicolnsliire line) 
 having claimed the right of cross-examining the London 
 and York witnesses, with a view of supporting liis client's 
 opposition to the Sheffield and Lincolnsliire scheme, he was 
 held by the committee to have no locus standi for that pur- 
 pose at that stage of the proceedings. (<?) 
 
 Mr. Burke, parliamentary agent, on behalf of tlie Shef- 
 
 (d) See ante, n. (c), p. ccxix. 
 
 (e) So in Group (N), Mr, Bliss, who appeared for a petitioner 
 
 i
 
 ecxxii Appendix. 
 
 field and Lincolnshire Railway Bill applied to the commit- 
 tee with the view of procuring the removal of that scheme 
 from the list of projects before the committee, on the ground 
 that being an eastern and western line it could have little 
 or nothing to do with railways running north and south, and 
 that there was but little probability of its coming before the 
 house that session, unless it were refen-ed to some other 
 committee. 
 
 The chairman stated the opinion of the committee to be 
 that they could not interfere with the bills refeiTed to them 
 by the selection committee, and that they had no power to 
 remove it from their list, unless ordered to do so by the 
 house. 
 
 Mr. Burke stated that the promoters of the line intended 
 to make an application to the house to that effect, but that 
 they had thought proper to apply in the first instance to the 
 committee, lest it should appear that they had acted dis - 
 respectfully toward them. 
 
 Evidence as to Traffic Tables. Upon the conclusion 
 of the general traffic evidence the traffic tables were put 
 in ; (g) and the parties by whom they had been prepared 
 were called as witnesses to support them. 
 
 The tables had been formed by taking the various items 
 
 against the York and North JMidland ( Goole Branch), which 
 was a competing line with the Wakefield, Pontefract and Goole 
 Railway, proposed to cross-examine a witness called on be- 
 half of the latter scheme, his object in fact being to support 
 the pi-omoters' case ; the committee decided that Mr. Bliss could 
 not be allowed to cross-examine the witness. Again, in the com- 
 mittee on Group (E), on the counsel for a landowner opposing 
 the Northumberland line, which was a competing line with the 
 Newcastle and Berwick, claiming to re-examine a witness called 
 on behalf of the latter scheme, and who had been cross-ex- 
 amined by the counsel for the Northumberland line, it was 
 held that he could not be heard. 
 
 (g) In order to prove the traflBc, the usual course for the pro- 
 moters was to put in their traffic tables, and call the party by whom 
 they had been prepared to explain them. In one case it was 
 held that the testimony of a witness conversant with the prepa- 
 ration of such tables was admissible to show the correctness of 
 the principles on which they had been compiled in the particular 
 case. 
 
 Latterly it has not been the practice, though formerly it was 
 otherwise, to call the parties actually employed to make the ob- 
 servations from which the tables have been compiled, or to put in 
 the books in which such observations were recorded ; though it 
 was of course competent for the other side to call for them if they
 
 Proceedings before Committees. ccxxiii 
 
 of the traffic already existing by roads, canals, &c., which it 
 was assumed would fall into the railway, and then multiplying 
 that in certain proportions to give the increase that might 
 be expected from the formation of the railway. 
 
 It appearing, on the traffic tables being put in that the 
 traffic on the line was divided into separate districts, 
 
 Mr. Webster on the part of the Direct Northern, and 
 Mr. Hildyard on the part of the Cambridge and Lincoln 
 and Eastern Counties, objected to the form of the tables. 
 
 The committee resolved, " That they would permit the 
 promoters of the bill to put in the tables in the shape in which 
 they now proposed, reserving to themselves the power, 
 should they so think fit at a future stage, of calling upon 
 them to amend the form of their tables by uniting them in 
 one." 
 
 At the close of the examination in chief of the first witness 
 called to speak to the tables, Mr. Wells, on behalf of the 
 Eastern Counties, applied to the committee for the purpose 
 of inducing the counsel conducting the case of the promo- 
 ters to proceed with their engineering evidence forthwith, 
 as it was impossible to go on with the cross-examination as 
 to the traffic tables, on account of the short time they had 
 been in the hands of counsel, who would therefore be com- 
 pelled to ask more questions than would otherwise be ne- 
 cessary. 
 
 Mr. Barker, on behalf of the Midland Counties, made a 
 similar application for a postponement of the cross-exami- 
 nation. 
 
 After considerable discussion, the committee, who cleared 
 the room to consider the question, stated that they would 
 adjourn to 11 o'clock the next day, in order to give time 
 for counsel to inform themselves on the traffic returns; 
 Mr. Serjeant Kinglake then consented to enter upon the 
 engmeering evidence for his clients, in order to save them 
 expense, but he would not consent that the course of that 
 evidence should be broken in upon by the resumption of 
 the cross-examination with regard to traffic the next day; 
 and the committee agreed to finish the engineering evidence 
 before they proceeded to other matters. 
 
 pleased. The committee sometimes required to be furnished with 
 further evidence as to the existing traffic of the country to be 
 traversed by the railway. (See Proceedings of Cornmillee on 
 Group (K), Supp. to Votes, 1845, p. 1389). See however as 
 to particular traffic evidence, post, App. III. Sect. A .
 
 ccxxiv Appendix. 
 
 Copies of the traffic tables were likewise furnished by the 
 promoters to the committee and to the opposing counsel. 
 
 Engineering Evidence. Mr. Serjeant Kinglake then pro- 
 ceeded to call, on behalf of the promoters of the bill, Mr. 
 Cubitt, their engineer in chief. Various other engineers, 
 surveyors, &c., were also called on behalf of the promo- 
 ters to speak to the accuracy of the estimates, the price of 
 the land, &c., and were severally cross-examined by the op- 
 posing counsel. In the course of the cross-examination of 
 Mr. Cubitt, the committee, upon application of opposing 
 counsel, decided that Mr. Cubitt should furnish summary 
 details in writing of the works on certain portions of the 
 line, in order to form the basis of the cross-examination, 
 and also to serv.e as a guide for the production of rebutting 
 evidence on the part of the opponents of the bill. 
 
 The committee also allowed the opposing counsel, in 
 order to test the accuracy of the engineering calculations, to 
 cross-examine as to the costs of works (h) on existing rail- 
 ways. 
 
 It appearing that the evidence for the London and York 
 Railway would shortly close, the opposing counsel applied to 
 the committee, and stated that it would be a great con- 
 venience to the parties if the committee would now inti- 
 mate the order in which they would hear the opposing 
 parties, the counsel opposing the bill contending that the 
 
 (h) It is competent for counsel opposing a railway bill, in 
 order to test the accuracy of the estimates, to cross-examine 
 generally as to the value set by the promoters on the land re- 
 quired for the purposes of their line, or on any particular de- 
 scription of such land, such as garden ground for instance ; 
 though they cannot do so in regard of this or that particular parcel 
 of ground, as it might have the effect of prejudicing the company, 
 in case of their subsequently having to go before a jury to assess 
 its value. 
 
 Though counsel cannot cross-examine as to the estimate of 
 the value of a particular piece of land, they may do so as to the 
 estimate of the costs of a particular embankment, &c., though 
 this has been objected to on the ground that the permitting it 
 would tend to prejudice the company in their dealings with the 
 contractor for the work ; but the objection was overruled by the 
 committee. (In committee on Group (B), Supp. to Votes of 
 Commons, 1845, p. 496.) And where the company have made 
 a bargain with a particular landowner for his land, &c., counsel 
 may, it seems, cross-examine as to the sum agreed to be paid. 
 (So ruled by committee on Group (FF), Supp. to Votes of Com- 
 mons, 1845, p. 1249.)
 
 Proceedings before Committees. ccxxv 
 
 case of landowners should be postponed till the whole of th ® 
 cases of the competing schemes should have been coucluded' 
 and their several comparative merits decided upon. 
 
 The committee resolved, " That the landowners and other 
 opponents should be heard next in order as against the Lon- 
 don and York bill." 
 
 At the close of the engineering evidence, the cross-ex- 
 amination as to the traffic tables, which had been postponed 
 until that time, was gone into. 
 
 Mr. Serjeant Wrangham having stated that he did not 
 propose to ofter any further evidence in favour of the bill, 
 
 The committee proceeded to the consideration of the case 
 of the landowners petitioning against the bill, and 
 
 Mr. Denison, who stated that he appeared in support of 
 the petition of the Earl of Scarborough, proceeded to call as 
 ■witnesses Mr. Powell, the steward of the petitioner, and 
 Mr. Walker, an engineer, who were examined by Mr. 
 Denison, and cross-examined by Mr. Paget. 
 
 Mr. Denison was heard in support of the petition. 
 
 Mr. Paget in reply. 
 
 The other petitions of landowners were then gone through 
 in a similar manner, the counsel in support of them being 
 heard either at the commencement or close of their evidence. 
 
 The case of the landowners against the London and York 
 bill having been concluded, 
 
 Mr. Hildyard on the part of the Cambridge and Lincoln 
 Railway Company stated tliat lie had arranged his case so 
 as to fuse together the rebutting evidence against tlie Lon- 
 don and York case, and the evidence in chief in support of 
 the substantive case on the merits of the Cambridge and 
 Lincoln line, and the counsel for the other lines competing 
 with the London and York proposed to adopt the same 
 course. 
 
 The committee intimated their approval of the course pro- 
 posed. 
 
 The committee then proceeded with the consideration of 
 the 
 
 Cambridge and Lincoln Railway Bill. 
 
 Mr. Hildyard proceeded to call witnesses in favour of the 
 bill and against the case of the London and York. 
 
 Mr. Rendel, engineer, {i) was called and examined l)y 
 Mr. Hildyard. 
 
 (i) The case of the Cambridge and Lincoln, it may be rc- 
 K K .3
 
 ccxxvi Appendix. 
 
 In the course of his examination, it having been proposed 
 to put in a table instituting a comparison between the popu- 
 lation in the district within ten miles on either side of the 
 London and York line and the population within a similar 
 distance of the Cambridge and Lincoln line, subject to this 
 extension, that in respect of the latter case it was proposed to 
 take into account the population in that portion of an ima- 
 ginary circle (of which the termination of branches contem- 
 plated, but not before the committee, was a centre,) which 
 was beyond ten miles from the main line, 
 
 Mr. Serjeant Wrangham objected to the course proposed, 
 and contended that Mr. Hildyard had no right to give evi- 
 dence with respect to population within ten miles of branches 
 ha\ang no parliamentary existence, but only suggested in 
 the report of the Board of Trade. 
 
 The committee resolved, " That the committee could not, 
 with a view of instituting the proposed comparison, admit 
 the population on lines not before parliament. If the pro- 
 moters of the Cambridge and Lincoln line desired to show that 
 a further portion of the country beyond the ten miles could 
 be served by their line as before the committee, it might be 
 done on the same principle as thai adopted bj' the commit- 
 tee in the previous part of the investigation." 
 
 Mr. Rendel's cross-examination was resumed by Mr. Ser- 
 jeant Wrangham. 
 
 Errors in Sections. Mr. Rendel, in the course of his 
 cross-examination, having admitted that at the distance of 
 16i miles from Cambridge there was an error of 10 feet in 
 the level of the surface of the country with reference to the 
 datum line, and that the line could not be carried into effect 
 unless he had the power of deviating more than five feet 
 from the level so laid down on the section with reference to 
 the datum line, 
 
 Mr. Serjeant Wrangham submitted that the committee 
 should decline to proceed further with the bill, it being clear 
 that this error of ten feet having been proved to exist, the 
 line could not, consistently with the provisions of clause (w?) 
 11, 8 Vict. c. 20, which limited the deviation of the section 
 to five feet, be constructed. 
 
 marked, commenced with the engineering evidence, whereas in 
 the case of the London and York, that branch of evidence was 
 not gone into until the close of the general evidence. 
 
 (m) See this statute, ante, App. I. See further for instances 
 where same objection allowed to be gone into, post, App. III. 
 Sect. VI.
 
 Proceedings before Committees. ccxxvii 
 
 Mr. Hildyard objected that this was a standing order 
 point, 
 
 Mr. Serjeant Wrangham replied, that it was not a stand- 
 ing order abjection, because the error rendered the construc- 
 tion of the Hne impossible. 
 
 The committee resolved, " That, in the case of the Cam- 
 bridge and Lincoln Railway bill, the preamble of the bill 
 was not proved, inasmuch as it appeared in evidence that 
 the line contemplated under the provisions of the bill referred 
 by the house to the committee could not, under those pro- 
 visions and the provisions of the 8 Vict. c. 20, be carried 
 into effect according to the plans and sections deposited in 
 the Private Bill Office." 
 
 The committee further resolved, " That it should be open 
 to the promoters of the Cambridge and Lincoln line, upon 
 the committee making a. report to the house in pursuance of 
 the resolution to which they had agreed, to submit the Cam- 
 bridge and Lincoln scheme to them in the shape of a pro- 
 ject," 
 
 On the determination of the committee being announced, 
 
 Mr. Hildyard applied to the committee to be permitted 
 to consult a short time with his clients, previous to stating 
 what course he was now prepared to pursue. 
 
 The committee acceded to Mr. Hildyard's request, and 
 adjourned for a quarter of an hour. 
 
 On the re-assembling of the committee, 
 
 Mr. Hildyard stated that he was prepared to prosecute 
 the scheme as a project, and had only to apply to the com- 
 mittee to adjourn till the next day, which was accordingly 
 done. 
 
 The counsel for the promoters of the Cambridge and I-m- 
 coln then proceeded to call a great variety of witnesses to 
 speak to the character of their line and its superiority over 
 the London and York, in regard of general merits, engi- 
 neering details, &c. 
 
 Mr. Basilo-ate, superintendent of surveys on tlie Cam- 
 bridge and Lincoln line, being called and examined by Mr. 
 Hildyard, produced an amended section of the levels. 
 
 Mr. Serjeant Kinglake, in cross-examination, having put 
 questions to tlie witness with relation to further inaccuracies 
 in the amended section produced in evidence before the 
 committee, Mr. Hildvard objected to the course of cross- 
 examination, inasmuch as it referred to questions which 
 should have been taken cognizance of by tiie comnuttce on 
 standing orders. i i • 
 
 Mr. Serjeant Kinglake stated, in reply to the cliairman.
 
 ccxxviii Appendix. 
 
 that it would entirely depend on the errors which he might 
 discover in the plans and sections whether or not he would 
 endeavour to show that the line could not be constructed in 
 accordance with them. 
 
 The committee resolved, " That the witness under exami- 
 nation having been called by Mr. Hildyard, Mr. Seijeant 
 Kinglake should be allowed to proceed with his cross-ex- 
 amination." 
 
 Cross-examination further proceeded with. 
 
 A witness called for the promoters having, in the course 
 of his examination, stated that the toll on coal proposed by 
 the Cambridge and Lincoln would be one penny per ton 
 per mile, and counsel proceeding to examine the witness as 
 to the comparative prices at which the coal would be obtain- 
 able by the consumer, should the Cambridge and Lincoln 
 company think proper to carry at three-fourths the toll spe- 
 cified in the tables of the London and York company, 
 
 An objection was taken to the proposed course of exa- 
 mination. 
 
 The committee resolved, " That the London and York 
 company having been compelled to put in their maximum 
 toll as a basis on which they were to give evidence of 
 traffic, the promoters of the Cambridge and Lincoln must 
 also put in their maximum toll as the basis on which they 
 were to give their direct evidence. That evidence on a 
 hypothetical toll could not be received as evidence for the 
 purpose of rebutting the direct evidence of the competing 
 line." 
 
 On the application of Mr. Serjeant Wrangham the plans 
 of the Direct Northern were produced, and the sections 
 promised the next day or the day after, the counsel for that 
 line at the same time protesting that there was no right to 
 demand them till the case came on. 
 
 Mr. Hildyard having stated that he had now concluded 
 the evidence he proposed to tender on behalf of the Cam- 
 bridge and Lincoln line. 
 
 The committee proceeded to the consideration of the pe- 
 tition of Mr. Pemberton. 
 
 On the conclusion of the evidence as to the petition of 
 Mr. Pemberton, Mr. Serjeant Wrangham stated that he 
 now proposed to ofler evidence in opposition to the evidence 
 given on behalf of the Cambridge and Lincoln line. 
 
 After some discussion as to the extent to which it Avould 
 be competent for him to do this, 
 
 The committee resolved, " That the promoters of the 
 London and York line could only give evidence to rebut
 
 Proceedings before Committees. ccxxix 
 
 the evidence in chief given by the promoters of the Cam- 
 bridge and Lincoln Une." 
 
 Witnesses were then called for this purpose. 
 ^ During the examination of one of these, Mr. Serjeant 
 Kinglake having put to the witness a question as to the 
 population within a certain area on the line of the London 
 and York line, 
 
 Mr. Hildyard objected to the witness being examined to 
 this point, ou the ground that it could not be considered as 
 evidence rebutting any given in support of the Cambridge 
 and Lincoln line, the Cambridge and Lincoln having in the 
 calculation made by Mr. Bampton, who had been called by 
 them to speak to the population on the respective lines, as- 
 sumed the population stated by Mr. Serjeant Wrangham in 
 his opening speech. 
 
 Mr. Serjeant Kinglake was heard in reply, and con- 
 tended that his examination was quite in accordance with 
 the decision of the committee. Tlie London and York had 
 not given any evidence of population. The numbers as- 
 sumed by Mr. Bampton were merely a hypothetical state- 
 ment on the part of Mr. Serjeant Wrangham. 
 
 The committee resolved, " That Mr. Serjeant Kinglake be 
 directed to proceed with the examination of the witness." 
 
 The examination was further proceeded with, and it ap- 
 pearing that the witness had not in his calculation started 
 from the same point as Mr. Bampton, 
 
 Mr. Hildyard objected to a calculation which was not 
 formed on the same basis as that of the Cambridge and 
 Lincoln. 
 
 The committee resolved, "That the chairman be instructed 
 to inform the parties that it was the opinion of the com- 
 mittee that in order to draw a fair comparison it was neces- 
 sary that parallels of latitude should be drawn tlu-ough 
 specified points, and the population calculated between those 
 lines so drawn." (?i) 
 
 Mr. Serjeant Kinglake having stated that he proposed to 
 call evidence to show that certain coaclies had been ])ut on, 
 and should be taken into calculation, as counterbalancing 
 those which appeared by evidence given on the other side 
 to have been discontinued subsequent to the period at which 
 the number was taken by the London and York, as stated 
 in the Stamp Office return, 
 
 (n) In like manner the committee or. Group (K) suggested 
 that they should be furnished with a table of population within 
 three miles of the competing lines.
 
 ccxxx Ajypendix. 
 
 An objection was taken by Mr. Hildyard to the course 
 proposed by Mr. Seijeant Kinglake, inasmuch as it 
 amounted to the production of new traffic tables. 
 
 The committee resolved, " That Mr. Serjeant Kinglake 
 be permitted to proceed with the evidence as proposed." 
 
 Mr. Hildyavd then applied to have the cross-examination 
 of the witness postponed till Monday morning, and that the 
 counsel for the London and York be directed to proceed with 
 the remainder of their evidence, to which the committee ac- 
 ceded, with this addition, that both parties must be confined 
 to the Stamp Office returns up to the end of Maj% 1845. 
 
 The additional returns from the Stamp Office, as pre- 
 scribed by the above resolution of the committee, were put 
 in by Mr. Wimberle}', who was cross-examined by Mr. 
 Hildyard. 
 
 Mr. Josiah Parkes was then called and examined by 
 Mr. Hildyard with respect to the additional tables, and 
 cross-examined by Mr. Serjeant Wrangham. 
 
 Mr. Serjeant Wrangham stated that this was all the evi- 
 dence he proposed to tender in rebuttal. 
 
 Mr. Hildyard then stated that before proceeding further 
 with the case he should submit to the committee an objec- 
 tion to the bill of the London and York company, which he 
 would sliow to be fatal to its further progress. The capital 
 originally contemplated and subscribed for under the con- 
 tract deed, as appeared by the prospectus and the scrip 
 of the company, was 5,000,000/., while that now proposed 
 to be authorized under the bill before the committee was 
 6,500.900/. (o) He should contend, first, that it was not 
 within the power of the committee to authorize this ad- 
 ditional capital ; secondly, that even if it were so, such an 
 alteration would render the contract deed null and void. 
 The company could not, under such circumstances, enforce 
 any claim against the subscribers, and consequently, even 
 were the committee to grant the preamble of the biU, the 
 provisions under which the work was to be carried out 
 would be inoperative. 
 
 Mr. Cockburn, on the part of the Direct Northern, and 
 other counsel, wei-e heard to the same effect. 
 
 (o) In the case of the Edinburgh and Northern line an in- 
 crease in the capital of 100,000/. (thereby raising the amount of 
 such capital to 650,000/.) was authorized by the committee, for 
 the purpose of constructing the line with a double instead of a 
 single line of rails.
 
 Proceedings before Committees. ccxxxi 
 
 Mr. Serjeant Wrangham was heard in reply, and con- 
 tended, as a preliminary point, that the question as put was 
 one not withui the province of the committee on the bill to 
 decide, and further, that even gi-anting that it were so the 
 view taken by Mr. Hildyard of the legal eifect of the course 
 proposed under the provisions of the bill was erroneous. 
 
 The committee resolved, " That the question as put to the 
 committee was one within the province of the committee to 
 decide." 
 
 " That it was competent to the committee to authorize 
 the London and York company to raise the sum proposed 
 as their capital under the provisions of the bill, three-fourths 
 of that amount having been subscribed." 
 
 The parties being called in and informed thereof, 
 
 Mr. Hildyard was then heard in support of the Cam- 
 bridge and Lincoln case, and in reply on the case of the 
 London and York. 
 
 The committee then proceeded with the consideration of 
 the 
 
 Direct Northern Railway Project. 
 
 The evidence was of the same character as that adduced 
 on behalf of the Cambridge and Lincoln. 
 
 Mr. Giles, engineer to the company, being under ex- 
 amination, and 
 
 Mr. Cockburn having directed the witness to produce new 
 plans and sections rectifying the errors in the original plan 
 and section, as deposited in the Private Bill Office, and also 
 an additional plan and section of the interval lying between 
 the terminus at Burton, as proposed under the bill. No. -2, 
 and Lincoln, and which it was necessary should be filled up 
 in order to effect a junction with the Cambridge and Lin- 
 coln, as suggested by the Board of Trade, 
 
 Mr. Serjeant Wrangham obJL>cted to the course proposed 
 by Mr. Cockburn, on the ground that it was not competent 
 for the Direct Northern to enter into the merits of any 
 scheme not included in tlicir parliamentary project, that 
 project being strictly defined and limited by the plans and 
 sections deposited in the Private Bill Office. 
 
 The committee resolved, " That it was not competent for 
 them to receive as evidence any plans or sections relative to 
 a hne or portion of a line of wliicli no plans or sections had 
 been deposited in the Private Bill Office. Tliat the com- 
 mittee, under the peculiar circumstances of tlie case, did
 
 ccxxxii Ajipendix. 
 
 not consider themselves called upon to exclude parol evi- 
 dence of a general nature as to the facilities or desirableness 
 of extending the line from Burton to Lincoln." (9) 
 
 Sir John Rennie, engineer to the company, being called 
 and examined by Mr. Webstei-, and cross-examined by Mr. 
 Serjeant VVrangham, was about to be further cross-examined 
 by Mr. Talbot, who appeared for the Archbishop of York, 
 but as it appeared that his grace had presented no petition 
 against the Direct Northern, it was decided that the counsel 
 could not be heard. 
 
 The witness was further cross-examined by Mr. Crowder 
 on behalf of the Don Navigation trustees, who complained 
 that the proposed erection of a bridge by the company 
 would obstruct the passage of vessels up and down the river. 
 
 In the course of the proceedings Mr. Cockbum stated, 
 that he proposed to call evidence to show that there was an 
 error in the sections of the London and York at a point 
 about ten miles from King's Cross, similar to that discovered 
 in the Cambridge and Lincoln case, and which he sub- 
 mitted must prove fatal to the bill. 
 
 Mr. Serjeant Wrangham objected to the reception of the 
 evidence, on the ground that Mr. Cockburn had not cross- 
 examined Mr. Cubitt on the point when he was under 
 examination with regard to the accuracy of the sections. 
 
 The committee resolved, " That the promoters of the 
 Direct Northern line were at liberty to offer as rebutting 
 evidence pi'oof of errors in the London and York sections of 
 such an amount as to render the construction of the line im- 
 practicable under the provisions of the act S Vict. cap. 20. 
 That, inasmuch as the time which the nature of the inves- 
 tigation occupied was such as to render it necessary that 
 some rule should be laid down, and as other opponents of 
 the London and York had stated their intention to offer 
 evidence of a similar description, the committee required that 
 the promoters of all such lines as intended to give such 
 evidence should the next morning hand in notices stating 
 the places at which there were such alleged errors, and the 
 extent of them. 
 
 " That the committee would proceed to the final con- 
 sideration of such evidence as might be tendered under and 
 consistently with the foregoing resolutions immediately after 
 the termination of the Tottenham and Farringdon Street 
 case." 
 
 (g) See ante, p. ccxx.v.
 
 Proceedings before Committees. ccxxxiii 
 
 Mr. Cockbum was heard in support of the case of the 
 Direct NoVthern, and in reply on the case of the London 
 and York. In the course of his address, Mr. Phinn ap- 
 plied to be allowed to call evidence on behalf of the Don 
 Navigation trustees. The committee decided against the 
 application, inasmuch as he had allowed the proper time for 
 making it to go by. (s) 
 
 The following notices with regard to the alleged errors 
 in the London and York section were put in on behalf of 
 the Direct Northern, and the Sheffield and Lincolnshire. 
 
 " To the sohcitors for the London and York Railway. 
 
 " Gentlemen, 
 " The error which we allege to exist in the London and 
 York section (Sheffield branch) is as follows :— The level 
 of the turnpike road, No. 12, parish of Whiston, at 160 
 miles 65 chains, is incorrectly stated on the said section, in- 
 asmuch as it is there marked 217 feet above the datum 
 line, whereas it is in fact 235 feet 9 inches or thereabouts 
 above the datum line, being an error of 18 feet 9 inches, or 
 thereabouts. 
 
 " Haywood, Bramley, and GAii\sFORD, 
 " Solicitors for the Sheffield and Lincolnshire Junction 
 Railway. 
 " 9, Bridge Street, Westminster, 
 " lO^A Juli/, 1845. 
 
 " The promoters of the Direct Northern Railway allege 
 that errors exist in the levels of the London and York Rail- 
 way, as shown on the deposited section, between a certain 
 road, called Hadley Common Road, at a distance of 9 
 miles 65 chains, or thereabouts, from King's Cross, and a 
 certain other road, called Robbery Wood Road, at a distance 
 of 23 miles 36 chains, or thereabouts, from King's Cross, 
 (that is to say) ; 
 
 " That at a certain road, called Greenwood Place Road, 
 at a distance of 10 miles 29 chains, or thereabouts, from 
 King's Cross, there is an error amoimting in extent to 9 
 feet, the said road being 9 feet too low as referred to tlie 
 common datum line on the section. 
 
 " That at the said Robbery Wood Road the error 
 amounts to 12 feet, the said road being 12 feet too low, as 
 referred to the common datum line on the section. 
 
 (s) See case of Manchester, Bolton anl Bury Canal (Com- 
 pany, ante, n. (a), p. ccxviii.
 
 ccxxxiv Appendix. 
 
 " That between the above-mentioned limits there are se- 
 veral public roads crossed by the said London and York 
 Railway, at which errors of a greater extent than 5 feet oc- 
 cur, such roads being more than 5 feet too low, as referred 
 to the common datum line on the section. 
 
 " That the above-mentioned error at the said Robbery 
 Wood Road is continued forv.ard to York. 
 
 " That the said errors affect the roads and navigations on 
 the projected London and York Railway from the said Had- 
 ley Common Road forward to York in such a manner as to 
 render the construction of the line impracticable under the 
 provisions of the act 8 Vict, c, 20." 
 
 Mr. Paget objected that the notice of the Direct Northern 
 was not in accordance with the spirit of the resolution, as it 
 did not state the points at which the alleged en-ors specified 
 so affected the works as to render their construction imprac- 
 ticable. 
 
 The committee resolved, " That it was necessary that the 
 opponents of the London and York line should specify the 
 places at which the errors affected the consti-uction of the 
 line under the 8th Vict. c. 20, as the only means of testing 
 the amount of en-or with reference to that act." 
 
 A question arising as to the eSect of the resolution — 
 
 The committee further resolved, " That the promoters of 
 the Direct Northern line were not at Uberty to give evidence 
 of the occurrence of errors at other places than Greenwood 
 Place Road and Robbery Wood Road, nor of the effect of 
 those errors at places other than those specified under the 
 amended notice required by the resolutions of the com- 
 mittee.' 
 
 ]\Ir. Phinn then renewed his application to be allowed to 
 call evidence in support of the River Don company, to 
 ■which the committee acceded. He accordingly proceeded 
 to call Mr. Bartholomew, the engineer of the company, who 
 "was examined by Mr. Phinn, and cross-examined by Mr. 
 Webster. Mr. Paget, on behalf of the London and York, 
 claimed a right to cross-examine the witness, which {t) was 
 not allowed. 
 
 Mr. Pajret, on behalf of the London and York, then 
 proceeded to offer evidence in rebuttal of the case of the 
 Direct Northern, the witnesses being examined by Mr. 
 Paget and cross-examined by Mr. Webster. 
 
 (i) See ante, n, (e), p. ccxxii.
 
 Proceedings before Committees. ccxxxv 
 
 The committee then proceeded with the consideration of 
 the 
 
 Tottenham and Furringdon Street Extemion Railway Bill. 
 
 Mr. Nias stated that he appeared on his own behalf 
 against the preamble of the bill. His petition was pre- 
 sented subsequent to the 28th of April, the day on which 
 the committee commenced its sittings, but the Tottenham 
 and Farringdon bill had not then been read 2°. He had 
 defeiTed the presentation of his petition, therefore, till after 
 the second reading, and it was presented three clear days 
 previous to the day appointed for the consideration of the 
 bill in committee, (w) 
 
 Evidence was then gone into on behalf of the last men- 
 tioned line of a similar kind to that adduced on behalf of 
 the Cambridge and Lincoln and Direct Northern. 
 
 Mr. Serjeant Wrangham applied to the committee to 
 direct the counsel for the Direct Northern to state the 
 places at which they proposed to prove the effect of the er- 
 rors specified to be so great as to render the work impracti- 
 cable. 
 
 The Chairman intimated to Mr. Webster that it was the 
 opinion of the committee that this should be done before 
 proceeding further with the case. 
 
 Mr. Serjeant Wrangham stated that on the part of the 
 London and York he had to make a request to the commit- 
 tee that they would come to a decision on the merits of that 
 scheme after the termination of the Tottenham and Far- 
 ringdon Street case. 
 
 Mr. Austin and other counsel were heard against Mr. 
 Serjeant Wrangham 's application. 
 
 The committee resolved, " That when the cases of the 
 Direct Northern and the Farringdon Street Extension lines 
 were closed, the committee would proceed to consider the 
 merits of the two competing schemes before them for effect- 
 ing a second trunk railway communication between London 
 and York, viz. : 
 
 " That of the London and York Company. 
 
 " That which consisted of the Cambridge and Lincoln, the 
 Direct Northern and the Farringdon Street Extension lines, 
 in conjunction with the Eastern Counties Railway already 
 executed as far as Caml)ri(lgc." 
 
 Mr. Talbot applied to the committee to know when tiic 
 rebutting evidence against the London and York Bill, 
 
 (u) See ante, n. (a), p.ccxvii.
 
 ccxxxvi Appendix. 
 
 which he proposed to offer on behalf of the Eastern Counties 
 and the York and North Midland Extension, might be 
 given, 
 
 The committee resolved, " That having, in the exercise 
 of the discretion vested in them by the house, selected from 
 the various schemes submitted to them the London and 
 York line, and the system made up by the combination of 
 the Cambridge and Lincoln, the Direct Northern, and the 
 Tottenham and Farringdon Street Extension, with the ex- 
 isting railway to Cambridge, as the only two schemes which 
 competed inter se, as respected a direct trunk communica- 
 tion from London to York, it was not open to the promoters 
 of any other line to bring forward rebutting evidence against 
 either of such schemes, so far as respected the thorough 
 communication." 
 
 " That the committee would take the Cambridge and 
 Huntingdon line next in order. The promoters of that and 
 other lines would then have the opportunity of bringing for- 
 ward positive and I'ebutting evidence as well inter se as 
 against such portions of either of the two schemes referred 
 to in their former resolution as then remained undecided 
 on, and as they might be then considered to compete with." 
 Mr. Paget then proceeded to offer evidence in rebuttal of 
 the case of the Tottenham and Farringdon Street Exten- 
 sion. 
 
 Mr. AVebster for the promoters then proceeded to call 
 further evidence on their behalf, in answer to the rebutting 
 evidence that had been produced by the other side. Upon 
 Mr. Page, assistant to Mr. Rendel, the engineer of the 
 Tottenham &'c. line, being called for this purpose, Mr. 
 Paget for the London and York line objected to any e%-i- 
 dence not directed to confirm or confute statements pre- 
 viously made, as the case was now closed on both sides. 
 The chairman gave it as the opinion of the committee that 
 they should hear evidence for their own satisfaction, and 
 desired the attendance of Mr. Rendel himself, to clear up 
 the difference between his estimates and that made by Mr. 
 Gibbs, the engineer called by the London and York in the 
 course of their rebutting evidence. Mr. Nias then went 
 into evidence in support of his petition. Mr. G. D. Paine, 
 civil engineer, was called and examined by Mr. Nias. His 
 evidence went to establish an error in the sections in re- 
 ference to the datum line greater than could be remedied 
 under the provisions of the 8 Vict. c. 20. In cross-exami- 
 nation, it appeared that the survey on which the witness
 
 Proceedings before Committees. ccxxxvii 
 
 founded his assertion of error to the extent of eight feet was 
 taken at a point out of the limits of deviation of the line 
 
 Mr. Webster argued that as the levels were taken 'in 
 reference to a pouit out of the deposited plan, Mr Nias 
 could not support an objection which depended on those 
 surveys. The committee decided that it was necessary for 
 Mr. Nias to confine himself to an error existing within the 
 limits of deviation, and that, therefore, Mr. Webster's ob- 
 jection was valid on that point. 
 
 Mr Nias was then heard in person in support of his ne- 
 tition. ^ ^ 
 
 _ Mr. Wakeling stated that he appeared on behalf of a pe- 
 tition from the vestry of Clerkenwell, but that he had been 
 prevented by illness from entering an appearance earlier. 
 
 The committee decided that Mr. Wakeling might pro- 
 ceed with his case, and he accordingly proceeded to address 
 the committee on behalf of his clients. 
 
 Mr. Webster, before evidence was called in support of 
 the petition, objected to the locus standi of Mr. Wakeling, 
 because the whole question was a matter of clause, and the 
 company would be quite willing to make any compensation 
 to the parish for the loss of rate. He contended that the 
 railroad would be of enormous value to the parish, and 
 would multiply the rate twenty-fold. 
 
 The committee having decided on hearing evidence in 
 support of the petition, Mr. Wakeling thereupon called va- 
 rious witnesses to speak to the loss of rate that Avould be 
 occasioned to the parish by the construction of the railway 
 in question. 
 
 Mr. Wakeling stating that he had no further evidence to 
 offer, 
 
 Mr. Hildyard was heard to sum up in support of the bill. 
 The committee then proceeded to tlic consideration of the 
 alleged errors in the section of the London and York line. 
 The evidence called by the opponents of the London and 
 York for this purpose went no further than to show an 
 error of two feet six inches, tlie discrepancy of nine or more 
 feet, alleged by the counsel for the Cambridge and Lincoln 
 to exist between the deposited sections and the actual sur- 
 face of the ground, and to render the line impracticable, 
 being proved to be merely the result of the contraction of 
 the paper on which the sections had been printed. The 
 committee upon this determined that it was inexpedient to 
 pursue the investigation with reference to the sections any 
 further, 
 
 Mr. Wells on the part of tlie Eastern Counties Com-
 
 ccxxxviii Ap])end'ix, 
 
 pany applied to the committee to be permitted to offer evi- 
 dence as to the accommodation afforded by the existing and 
 projected termini of that line in London. 
 
 The committee decided against the application. 
 
 Mr. Wells applied for permission to address the commit- 
 tee on the facts elicited in the cross-examination of the 
 London and York witnesses. 
 
 The committee decided against the application. 
 
 Mr. Serjeant Wrangham was heard in reply on the whole 
 case. 
 
 The committee proceeded to the consideration of the 
 preamble of the London and York Railway bill, and de- 
 cided that the preamble of the London and York biU was 
 proved, omitting the Wakefield and Sheffield branch, which 
 they thought it right to postpone, there being other projects 
 which might be considered as competing lines before them. 
 
 Mr. Serjeant Wrangham upon this applied to the commit- 
 tee to move the house for a general instruction to divide the 
 London and York bill, so as to enable them to proceed 
 with all the lines except the Sheffield cind Wakefield branch. 
 
 The committee then proceeded with the consideration of 
 the 
 
 Tottenham and Furringdon Street Extension Railway Bill. 
 
 Question, " That the preamble of the bill is proved," put, 
 and passed in the negative. 
 
 The committee proceeded with the unopposed clauses of 
 the London and York bill. 
 
 It appearing that some consultation was requisite with 
 regard to the other clauses of the bill, the committee con- 
 sented, on the application of counsel, and no opposition 
 being offered to such a course, to hear the case of the Cam- 
 bridge and Huntingdon bill, which was unopposed. 
 
 At the conclusion of the Cambridge and Huntingdon 
 case, Mr. Austin made an application to the committee 
 to proceed next to the consideration of the case of the York 
 and North Midland and Doncaster Extension Railway bill, 
 stating as the ground on which he made the application that 
 there was no oppcsition to the bill, 
 
 Mr. Serjeant Wrangham objected to the application made 
 by Mr. Austin, and stated that he was prepared, on behalf 
 of the Wakefield branch of the London and York scheme, 
 to offer opposition to the passing of the line for which Mr. 
 Austin appeared, and with which he considered the Wake- 
 field branch directly competing. 
 
 Resolved, " That the committee propose to proceed now
 
 Proceedings before Committees. ccxxxix 
 
 with the clauses of the London and York bill. The com- 
 mittee adhere to their opinion expressed in their former re- 
 solution, that the York and North Midland and Doncaster 
 Extension is not a competing hne with the London and 
 York as respects thorough communication between London 
 and York ; but they have decided upon considering that line 
 as well as the Swinton and Lincoln, as competing with the 
 Wakefield branch of the London and York." 
 
 The committee proceeded with the clauses of the bill. 
 
 On clause 6 being read, Mr. Austin stated on behalf of 
 the Midland schemes that he had some opposition to offer 
 to the entire clauses of the bill. 
 
 The committee decided that it was not competent to the 
 Midland, or to lines competing with the London and York 
 to be heard against the clauses of the bill. 
 
 The instruction of the house of the 24th July, " That the 
 committee have power to divide the London and York rail- 
 way bill into two or more bills, in order that they may re- 
 port, from time to time, on so much of the said bill as they 
 may determine upon, and proceed separately with the con- 
 sideration of the remainder thereof," being read. 
 
 The committee resolved, " That so much of the reso- 
 lution of the committee as related to the amendment of the 
 preamble of the London and York bill, by the omission of 
 the words ' Wakefield and Sheffield,' and the passing of the 
 preamble as amended, be rescinded." 
 
 The committee further resolved, " That the chairman be 
 instructed to inform the parties that the committee, having 
 received from the house an instruction empowering them to 
 divide the London and York bill into two or more bills, in 
 order that they may report from time to time on so much 
 of the said bill as they may determine upon, and proceed 
 separately with the remainder thereof, and having found it 
 necessary to rescind so much of their proceedings as relate 
 to the amendment of the preamble of tlic London and York 
 by the omission of the words ' Wakefield and Sheffield,' 
 and the passing of the preamble, as amended, in order to 
 place themselves in a position to carry that instruction into 
 effect, the connnittee require that tlie parties will take im- 
 mediate steps to carry tlie objects contemplated by tlie in- 
 struction into effect." 
 
 The resolutions of the previous day, with respect to the 
 clauses of the bill, were reconsidered and rescinded. 
 
 The committee adjourned for a short time, in order to 
 enable the parties to divide the bill in accordance witli the 
 resolution of the committee.
 
 ccxl /Ippendix. 
 
 On the committee again meeting. 
 
 Mr, Paget, on behalf of the London and I'ork company, 
 submitted the first bill, with which they proposed to pro- 
 ceed, for the formation of a railway from London to York, 
 excluding the Wakefield and Sheffield branches. 
 The preamble was read and agreed to. 
 The committee proceeded with the clauses of the bill. 
 On clause 16 being read, 
 
 Mr. Wilde, on behalf of St. Bartholomew's Hospital, ob- 
 jected to the provisions of the clause, on the ground that 
 the company had scheduled considerably more land belong- 
 ing to the hospital than could possibly be requisite for the 
 pui-poses of the railway. 
 
 Mr. Paget was heard; and Mr. Cubitt, the company's 
 engineer, was called and examined b\' the committee. 
 
 The committee resolved, " That the parties be insti-ucted 
 to prepare a clause giving the hospital a right of pre-emption 
 with respect to any land not wanted, and providing that the 
 company should, within three years, specify the exact 
 quantity of land requisite." 
 
 A clause was brought up accordingly, read, and agreed 
 to. 
 
 The clauses were further proceeded with. 
 
 A clause was proposed by Mr. Whateley, on behalf of 
 the Earl of Lindsey, providing that the company should not 
 be empowered to take any of the lands of Earl Lindsey 
 without his consent in writing. 
 
 Witnesses were examined on behalf of Earl Lindsej'. 
 
 Mr. Paget was heard. 
 
 The clause was put and negatived. 
 
 The committee went through the remaining clauses of 
 the bill. 
 
 Several manuscript clauses were brought up, read, and 
 added to the bill. 
 
 Mr. Austin stated that he appeared with Mr. Talbot on 
 behalf of the inhabitants of Hornsey, and should oppose 
 some clauses of the bill. 
 
 Mr. Hildyard was heard on behalf of the Gainsborough 
 Bridge trustees. 
 
 Several manuscript clauses were brought up, read, and 
 added to the bill. 
 
 On the clauses relating to the Fossdyke Navigation being 
 brought up and read, 
 
 A member of the committee objected to the clauses, and 
 stated that he considered it injurious to the interests of the
 
 Proceedings before Committees. ccxli 
 
 public to empower the company to lease the navigation, but 
 the committee decided on retaining them. 
 
 And the same with regard to a series of clauses relating 
 to the Witham Navigation. 
 
 The clauses were further proceeded with. 
 
 Additional manuscript clauses relating to the Witham 
 Navigation were read and added to the bill. 
 
 On a clause being brought up restricting the company 
 from taking on the railway more than two-thirds of the tells 
 authorized under their Act, until they should have applied 
 to Parliament for authority to reduce to two-thirds the tolls 
 usually taken on the Witham Navigation, 
 
 A member of the committee stated that he objected to 
 this clause^ but the committee decided on retaining it. 
 
 Parties called in and manifecript clauses further pro- 
 ceeded with. 
 
 The committee proceeded to the consideration of their 
 report on the matters required by the standing orders to be 
 examined into by railway committees, and ultimately it was 
 ordered that the bill as amended be referred to the house. 
 
 SELECT COMMITTEE ON GROUP (A) OF 
 RAILWAYS. 
 
 COMPRISING, 
 
 1. Central Kent Project. 
 
 2. London, Chatham, and North Kent. 
 
 3. London and Croydon (Chatham to Chilham). 
 
 4. London and Croydon (Chatham to Gravesend). 
 
 5. London and Croydon Enlargement. 
 
 6. London and Croydon (Orpington Branch). 
 
 7. London and Croydon (Maidstone, Ashford, and Tun- 
 
 bridge). 
 
 8. South Eastern (Ashford to Hastings). 
 
 9. South Eastern (Branch to Deal and Extension of tiic 
 
 South Eastern, Canterbury, Ramsgate, and Margate 
 Railway). 
 
 10. South Eastern (Hungerford Bridge to Chilham, witli 
 
 Branches) Project. ,„ , . , i r. 1 1 i 
 
 11. South Eastern (Lewisham to funbridge and Paddock 
 
 Wood) Project.
 
 ccxlii Ajypendix. 
 
 12. South Eastern (Maidstone to Rochester). 
 
 13. South Eastern (Tunbridge to Tunbridge Wells). 
 
 14. South Eastern (Widening and Extension of the Lon- 
 
 don and Greenwich) Railway. 
 
 15. South Eastern (Headcorn and Rye) Project. 
 
 16. Brighton, Lewes, and Hastings (Keymer Branch). 
 
 17. Brighton, Lewes, and Hastings (Hastings, Rye, and 
 
 Ashford Extension). 
 
 18. Rye and Tenterden. 
 
 19. Kentish Coast. 
 
 20. Gravesend and Rochester. 
 
 21. London and Greenwich. 
 
 Upon the first meeting of the committee, a question 
 arose as to the order of precedence in which the nume- 
 rous bills and projects referred to them should be taken; 
 counsel could not agree upon the point, and the chairman 
 stated that if the counsel could not agree, the committee 
 would exercise its discretion, and not necessarily proceed 
 with them according to the priority of their second reading. 
 The committee finally decided to take first the bills 16 and 
 21, being unopposed bills, and then to proceed with the 
 bills Nos. 2, 3, 4 and 6, and the project No. 10 together, as 
 the lines competing for the accommodation of North Kent. 
 The North Kent (No. 1) to begin, (according to its priority 
 of second reading), to be followed by the South Eastern 
 Company's project (No. 10), and then by the Croydon 
 Company's bills (Nos. 3, 4 and 6). 
 
 The following was the course of proceeding adopted : — 
 counsel for No. 2 opened the case and called witnesses, who 
 were cross-examined by counsel for the two other com- 
 panies, and for opposing landowners. Then counsel were 
 heai'd and witnesses examined against No. 2 for opposing 
 landowners ; then the South Eastern Company's case was 
 gone through in like manner, but without an opening 
 speech ; then the case of the Croydon Company (atmosphe- 
 ric lines). At the close of all the evidence, Mr. Cockburn 
 was heard in support of the South Eastern project (No. 10) 
 against the other competing lines ; next Mr. Austin was 
 heard in like manner on behalf of the Croydon Company's 
 lines, and finally Serjt. Wrangham replied for No. 2. 
 
 At the close of the case for the London, C/iulhani, and 
 North Kent Bill, which, as we have seen, was the first of 
 the competing lines with which the committee proceeded, 
 the counsel for the South Eastern competing line objected 
 that there had been a change from the original plans and 
 estimates of the former line, by the omission of branches.
 
 Proceedings before Committees. ccxliii 
 
 and tlie substitution of tunnels for cuttings; it was, however, 
 held to be no ground for stopping the case. 
 
 The committee declined to compel the attendance of 
 General Pasley as a witness, he being a public officer, and 
 the Board of Trade objecting. 
 
 The committee refused to entertain the opposition of the 
 inhabitants of Faversham as such, (n) 
 
 Mr. Bidder, the engineer of the South Easter?!, whose 
 examination commenced that Company's engineering evi- 
 dence, having been examined as to the comparative merits of 
 the North Kent and South Eastern schemes, aquestion arose 
 as to when his examination with reference to the Croydon, 
 (atmospheric), the other competing line, should be proceed- 
 ed with. The committee having decided that such evidence 
 should be then given, Mr. Bidder went on to state that he 
 had objections to the atmospheric system, founded on the 
 laws of nature, which would limit the powers of the atmos- 
 pheric system. Mr. Austin, Q. C, for the Croydon line, 
 objected to any question being put to the witness relative to 
 the applicability of the atmospheric mode of traction. The 
 committee, however, abided by their prior resolution as to 
 proceeding with the evidence in question, and accordingly 
 Mr. Bidder was recalled and examhied at great length as to 
 the merits and demerits of the atmospheric plan. 
 
 A motion was made at this stage of the proceedings by a 
 member of the committee, that, " inasmuch as the committee 
 have now before them three competing lines of railway, and on 
 one of those it is proposed to estabHsh the atmospheric prin- 
 ciple of working, the committee do not feel themselves com- 
 petent in the present state of information on that subject, 
 and the absence of any fixed data upon which to decide the 
 relative merits of the atmospheric and locomotive principles, 
 to decide a question such as this, upon which scientific men 
 are so divided in opinion ; be it therefore resolved, that, 
 adopting the precedent of the South Devon and Tavistock 
 Railway Company, and likewise following the advice given 
 by the select committee on atmospheric railways, viz. ' to 
 suspend all railwav legislation until the result of the Devon 
 and Cornwall, and of the Epsom and Croydon atmosplieric 
 lines are known,' the committee do postpone the further 
 consideration of the bill and projects before them to Tues- 
 day, the 8th July, when the said bills and projects may be 
 included in the general measure for deferrmg bills until the 
 
 (n) But see post, App. III., sect. vi. 
 L L 2
 
 ccxliv Appendix. 
 
 next session, by which period it is probable the before-men- 
 tioned schemes will be carried out." 
 
 The motion was, however, negatived by the committee. 
 
 At the close of the engineering evidence of the South 
 Eastern line, Mr. Cockburn, Q. C., for that line, took an 
 objection to the North Kent line, that the consent of the 
 Ordnance to their crossing Woolwich common was given 
 only on the condition of their doing so by means of a tun- 
 nel below the surface; and that, according to their de- 
 posited plans and sections, they could not execute this tun- 
 nel without exceeding the limits of deviation allowed by 
 parliament. The committee decided not to stop the case 
 on that ground. (o) 
 
 In the cross-examination of the engineer of the London 
 and Croydon line, it came out that his plan involved the 
 crossing the Medway at a point where it was navigable, and 
 carrying a tunnel under Fort Pitt at Chatham. It was ob- 
 jected by the counsel for the North Kent line, that the pro- 
 moters of the London and Croydon were bound to show the 
 assent of the Admiralty to the proposed method of crossing 
 the Medway, and of the Board of Ordnance to the tunnel 
 imder Fort Pitt, in order to entitle themselves to be heard 
 further before the committee. It was decided, that before 
 the pi'omoters went further, they were bound to produce the 
 necessary consents, but they might have till the next day 
 to produce them, their case being suffered to proceed in the 
 meantime. 
 
 The authenticity of the consent of the Board of Ordnance 
 to the North Kent line being impugned, and a private 
 letter from the solicitor to the Board being tendered in evi- 
 dence for this purpose, grounding a charge of corruption 
 against the solicitor, the committee refused to receive such 
 letter in evidence, as involving matter not witliin their 
 jurisdiction, but called on the counsel for the North Kent 
 line, by whom such consent had been offered in evidence, 
 to prove its authenticity. 
 
 The bill for a railway from Tunbridge to Tunbridge 
 Wells, promoted by the South Eastern Companj', being be- 
 fore the committee, and the preamble being declared to be 
 proved, the Medway Navigation Company applied to have 
 a clause inserted in the bill for their protection, on the ground 
 that the main line of the promoters touched their navigation, 
 and therefore as they had a locus standi against the main 
 line, they consequently had a right to be heard against the 
 
 (o) See ante, App. p. ccxxvi.
 
 Proceedings before Committee. ccxlv 
 
 branch. It was, however, decided, that they had no locus 
 standi before the committee. 
 
 The Ash ford and Hastings Branch of the South Eastern 
 being before the committee, an objection was made in li- 
 mine to their being heard, on the ground of the positive 
 refusal of the Board of Admiralty to sanction the passage of 
 the harbour at Rye by a bridge ( which formed part of their 
 scheme) for fear of the navigation being obstructed ; the 
 committee refused to stop the proceedings on the bill at that 
 stage, but declared that they would themselves communicate 
 with the Admiralty on the subject. 
 
 The South Eastern Company having abandoned their 
 bill for a line from Ashford to Hastings was held to 
 have no locus standi against the Tenterden and Rye line, 
 then before the committee, on a question affecting only the 
 project so abandoned. 
 
 South Eastern {Deal Extension, Ifc, Canterbury, Rams- 
 gate, and Margate) Railwai/ Bill. 
 
 Mr. Austin was heard to apply that this bill should be 
 taken next into consideration. 
 
 Mr. Hill stated he should be prepared to oppose the bill 
 on behalf of landowners and the Kentish coast project. 
 
 The committee determined that this bill should be pro- 
 ceeded with the next day at eleven o'clock. 
 
 It was ruled that a counsel for opposing landowners, who 
 had not questioned witnesses called to speak to the traffic 
 tables, might yet comment generallt/ on the traffic. 
 
 The committee decided in the case of the North Kent 
 line, whose preamble had been negatived, tbat after this, 
 they could no longer be supposed to exist, and consequently 
 could have no locus standi against the Minster and Deal 
 branch of the South Eastern, which was then before the 
 committee. 
 
 The corporation of Sandwich was not admitted to oppose 
 the bill for tiie last mentioned line, on the ground that the 
 mode proposed by the company of crossing the river Stour 
 would interfere with their interest in a ferry, the point of 
 crossing being three miles off, and other ferries inter- 
 vening, (p) 
 
 Counsel, who appeared on behalf of a project which had 
 ceased to exist (Kent coast), were not allowed to cross-ex- 
 
 (p) But in the House of Lords, the corporation of Sandwich 
 renewed their application to be heard, and succeeded.
 
 ccxlvi /Appendix. 
 
 amine witnesses called by the projectors of the above line 
 then before the committee as to the possibility of a better 
 line being adopted. 
 
 London and Croydon ( Maidstone, Ashford, and Tunbridge) 
 Hallway Bill. 
 
 Mr. Talbot applied to be heard in support of the preamble 
 of the bill, and, in the event of the bill being now postponed, 
 made application that the committee should make such re- 
 commendation to the House in their report as would entitle 
 the promoters of the bill to such advantages as may be given 
 to postponed railway bills in another session. 
 
 South Eastern {Maidstone to Rochester) Railway Bill. 
 
 Mr. Alexander made a similar application on behalf of the 
 promoters of this bill. 
 
 Room cleared. 
 
 Committee deliberated. 
 
 Resolved, " That in the case of the London and Croydon 
 (Maidstone, Ashford, and Tunbridge) Railway Bill the 
 committee had determined that they would not proceed 
 with the bill, inasmuch as, besides the late period of the 
 session, which would preclude the possibility of arriving at 
 any result, the line proposed is an atmospheric line ; and 
 the committee are of opinion it would be advisable to post- 
 pone the consideration of the bill till the next session, when 
 experience will have proved whether the atmospheric prin- 
 ciple of propulsion is capable of being advantageously ap- 
 plied. That in the case of the South Eastern (Maidstone 
 to Rochester) Railway Bill, the committee had also deter- 
 mined not to proceed with the bill, as forming an important 
 part of the North Kent scheme of railway communication, 
 the consideration of which it is advisable to postpone till 
 next session. 
 
 " With regard to both these bills, with which the parties 
 were ready to proceed, but which the committee for the 
 reasons stated declined to entertain, the committee recom- 
 mend that they should be placed in a favourable position 
 next session, in consideration of the expense which the par- 
 ties have incurred in advancing the bills to their present 
 stages, without having had an opportunity of being heard." 
 
 Parties called in and informed thereof. 
 
 Ordered, to report.
 
 ( ccxlvii ) 
 
 APPENDIX III. 
 
 PARLIAMENTARY PRACTICE. 
 
 I. Preliminahy Proceedings. 
 
 1. Notices. 
 
 2. Plans, Sections, &c. 
 
 3. Application to Owners, &c. 
 
 4. Estimate and Subscription Contract. 
 
 5. Deposit. 
 
 6. Proceedings preliminary, &c. to Introduction of Bill into 
 
 House of Lords. 
 
 II. Provisions to be inserted in Railway Bills. 
 
 1. Under Standing Orders of House of Commons. 
 
 2. Under Standing Orders of House of Lords. 
 
 III. Proceedings in the House of Commons. 
 
 1. General course of business relating to Private Bills. 
 
 2. Petition. 
 
 3. Committee on Petition. 
 
 4. Committee on Standing Orders. 
 
 5. Presentation of Bill. 
 
 6. First Reading. 
 
 7. Second Reading. 
 
 8. Committee of Selection. 
 
 9. Resolutions of Session of 1845. 
 
 10. Classification Committee. 
 
 11. Committee on Bill. 
 
 (1.) Constitution of Committee. 
 
 (2.) Time of meeting. 
 
 (3.) Preliminaries to First Meeting. 
 
 (4.) Powers, Functions, &c. of Committee. 
 
 (5.) General course of Proceedings. 
 
 (1st.) On unopposed Hill. 
 
 (2ndly,) On opposed Bill. 
 
 (3rdly.) On Group of competing Bills.
 
 ccxlviii Appendix. 
 
 12. Report. 
 
 13. Consideration of Report. 
 
 14. Third Reading. 
 
 IV. Proceedings in the House op Lords. 
 
 1. General Course of Business. 
 
 2. Introduction of Bill, ficc. 
 
 3. Committee on Standing Orders. 
 
 4. Second Reading and Commitment 
 
 5. Committee on Bill. 
 
 6. Report. 
 
 7. Consideration of Report. 
 
 8. Third Reading. 
 
 9. Proceedings in Commons in regard of Lords' Amend- 
 
 ments. 
 
 V. Evidence in Support of Railway Project. 
 
 1. Evidence of compliance with Standing Orders. 
 
 (1.) Before Sub-Committee on Petition in Commons. 
 (2.) Before Standing Orders Committee in Lords. 
 
 2. Evidence before Committee on Bill. 
 
 VI. Of the Opposition to a Railway Bill, and the Evi- 
 
 dence addccible in Support thereof. 
 
 1. Of the Locus Standi. 
 
 (1.) As regards Interest. 
 
 (1st.) Competing Lines. 
 
 (2ndly. Landowners, &c. 
 (2.) As regards the Petition. 
 
 (1st.) Time of Presentation. 
 
 (2ndly.) Requisites, &c. 
 
 2. Of the Grounds of Opposition and Evidence adducible 
 
 in support thereof. 
 
 VII. Proceedings relating to Bills re-introduced into 
 
 Parliament during the present Session. 
 
 1. Orders of House of Commons. 
 
 2. Resolutions of Lords. 
 
 VIII. Of the Costs. 
 
 1. Of the Taxation of Costs. 
 
 2. Of the Mode of recovering them. 
 
 IX. Resolutions, &c. of the present Session relative to 
 
 Railway Bills. 
 
 1. Resolutions, 6iC. of Commons. 
 
 2. Resolutions, &c. of Lords. 
 
 X. Suggestions drawn up by the Chairmen for the Con- 
 
 sideration OF the Select Committee on Railway 
 Groups, Session 1846.
 
 Parliamentary Practice. ccxlix 
 
 Section I. 
 
 PRELIMINARY PROCEEDINGS IN CASE OF BILLS 
 FOR MAKING, MAINTAINING, VARYING EX- 
 TENDING OR ENLARGING ANY RAILWAY. 
 
 1. Notices. 
 
 2. Plans, Sections and Book of Reference. 
 
 3. Owners, Lessees and Occupiers. 
 
 4. Estimate and Subscription Contract. 
 
 5. Deposits. 
 
 6. Proceedings previous to Introduction of Bill into 
 
 House of Lords. 
 
 H. C. means order of House of Commons ; H. L. means order of 
 House of Lords. The words in italics in the body of the order 
 are not in the order of the House of Lords ; or else denote 
 the changes introduced into the Standing Orders during the last 
 Session. 
 
 1. Notices, (a) 
 
 Notices of Application. 
 
 That notices be given in all cases where application is in- 
 tended to be made for leave to bring in a bill for making, 
 maintaining, varying, extending or enlarging any railway. 
 — H. C. 14; H. L. 220, s. 1. 
 
 Notices to contain the Names of Parishes, Townships, Townlands 
 and Extra-parochial Places, and to state the Time and Place 
 of Deposit of Plans, &;c. 
 
 That in cases of such bills, all notices shall (6) contain 
 
 (a) After giving the notices, the promoters of a project 
 should be cautious how they abandon any part of the project for 
 which their notices have been given before coming into parlia- 
 ment, since should the part thus abandoned be deemed an essen- 
 tial portion of their scheme, it may have the effect of throwing 
 them over on the standing orders. ('Direct Northern. Session, 
 1845.) 
 
 (6) In a case (South-Eastern Railway) before sub-committee 
 L L 5
 
 ccl Apfendix. 
 
 the names of the parishes, townships, townlands and extra- 
 parochial places from, in, through, or into which the work 
 is intended to be made, maintained, varied, extended or en- 
 larged, and shall state the time and place of deposit of the 
 plans, sections and books of reference respectively, with the 
 clerks of the peace, parish clerks, schoolmasters, town clerks 
 and clerks of unions, as the case may be. — H. C. 22 ; H. L. 
 223, s. 1. 
 
 Intention to levy or alter Tolls to be stated. ■ 
 
 That if it be the intention of the parties applying for leave 
 to bring in a bill to obtain powers for the compuhori/ pur- 
 chase of lands or houses, or to levy any tolls, rates or duties, 
 or to alter any existing tolls, rates or duties, or to confer, 
 vary or extinguish any exemptions from payment of tolls, 
 rates or duties, or any other rights or privileges, the notices 
 shall specify such intention. — H. C. 16 ; H. L. 220, s. 3. 
 
 Notices to be published. 
 
 That such notices be published in three successive weeks 
 in the months of October and November, or either of them, 
 immediately preceding the session of parliament in which 
 application for the bill shall be made, in the London, Edin- 
 burgh or Dublin Gazette, as the case may be, and in some 
 one and the same newspaper of the county in which the 
 city, town or lands to which such bill relates shall be situate; 
 or if there be no newspaper published therein, then in the 
 newspaper of some county adjoining or near thereto; or if 
 such bill do not relate to any particular city, town or lands, 
 in the London, Edinburgh or Dublin Gazette only, as the 
 case may be ; and that all notices required to be inserted in 
 the London, Edinburgh or Dublin Gazette, be delivered at 
 
 No. 2, last session, where application was made by the pro- 
 moters of the above railway for one bill, embracing divers pro- 
 jects for distinct lines of railway, through the several counties of 
 Kent, Sussex and Surrey, it appeared that the notices inserted in 
 the papers published in each of the said counties only contained 
 the names of those parishes, &c. to which the particular project 
 affecting the individual county related, and that in point of fact, 
 although there was but one bill, each of the projects there em- 
 braced was treated as a separate project in respect of notice, the 
 committee were of opinion tliat the notices were not good, and 
 that the promoters had not complied with the standing orders, 
 (Ridd. Pari. Pract. 31.)
 
 Parliamentary Practice. ccli 
 
 the office of the gazette in which the insertion is required to 
 be made, during the usual office hours, at least tivo clear days 
 previous to the publication of the gazette, and that the receipt 
 of the printer for such notice shall be proof' of its due delivery. 
 — H. C. 15 ; H. L. 220, s. 2. 
 
 Notices to be affiled on Doors uf Sessions House at the Session pre- 
 ceding the Meeting of Parliament. In Scotland, on Doors 
 of Parish Churches in October and November. 
 
 That notices shall also be given at the general quarter 
 session of the peace which shall have been holden for every 
 and each county, riding or division in or through which the 
 work shall be made, maintained, varied, extended or en- 
 larged, at Michaelmas or Epiphany preceding the session of 
 parliament in which such application is intended to be made, 
 by affixing such notice on the door of the session house of 
 each and every such county, riding or division where such 
 genera] quarter session shall be holden ; save and except as 
 to any bill for such purposes in Scotland ; in which case, 
 instead of affixing such notices on the door of the session 
 house, such notices shall be written or printed on paper, and 
 affixed to the church door of the parish or parishes in or 
 through which such work is intended to be made, maintained, 
 varied, extended or enlarged, for two Sundays in each of 
 the months of October and November immediately preceding 
 the introduction into parliament of the bill for which such 
 application is intended to be made. — H. L. 223, s. 2. 
 
 2. Plan, Section and Book of Reference. 
 
 Duplicate Plans and Sections, (c) with Book of Reference, to be 
 deposited with Clerks of the Peace, &;c. 
 
 That a plan, and also a duplicate of such plan, on a scale 
 of not less than four inches to a mile, be deposited for public 
 inspection at the office {d) of the clerk of the peace for every 
 county, riding or division, in England or Ireland, or in 
 the office of the principal sheriff clerk of every county in 
 Scotland, in or through which the work is proposed to be 
 
 (c) See note, post, p. cclv. 
 
 (d) The office of the clerk of tlie peace for Gloucestersliire is 
 situated at Gloucester, the plans were deposited at an office at 
 Dursley, in the same county, where the clerk of the peace resided, 
 but no deposit was made at the office at Gloucester, which ap- 
 peared to be the public office of the clerk of the peace : held, 
 not a compliance with the standing orders. Bristol and Glou- 
 cester Railway Session, 1837. Luml. Pari. Pr. p. 10.
 
 cclii Appendix. 
 
 made, maintained, varied, extended or enlarged, on or before 
 the 30th day of November, immediately preceding the ses- 
 sion of parliament in which application for the bill shall be 
 made ; which plans shall describe the line or situation of 
 the whole of the work, and the lands in or through which 
 it is to be made, maintained, varied, extended or enlarged, 
 or through which every communication to or from the work 
 shall be made, together with a book of reference containing 
 the names of the owners or reputed owners, lessees or re- 
 puted lessees, and occupiers of such lands respectively ; and 
 in the case of bills relating to turnpike roads, cuts, canals, 
 reservoirs, acqueducts and railways, a section and duplicate 
 thereof, as hereinafter described, shall likewise be deposited 
 with such plan and duplicate. — H. C. 23 ; H. L. 223, s. 3. 
 
 Lauds within Deviation to be on Plan. — Buildings, S^c.to he on 
 enlarged Scale. 
 
 That where it is the intention of the parties to apply for 
 powers to make any lateral deviation from the line of the 
 proposed work, the limits of such deviation shall be defined 
 upon the plan, and all lands included within such limits 
 shall be marked thereon, and that in all cases, excepting 
 where the whole of such plan shall he upon a scale of not 
 less than a quarter of an inch to every 100 feet, an addi- 
 tional plan of any building, yard, court-yard or land within 
 the curtilage of any building, or of any ground cultivated as 
 a garden, either on the original line or included within the 
 limits of the said deviation, shall be laid down on the said 
 plan, or on the additional plan deposited therewith, upon a 
 scale of not less than a quarter of an inch to every 100 feet. 
 H. C. 24 ; H. L. 223, s. 4. 
 
 Scale of Section. 
 
 That the section be drawn to the same horizontal scale as 
 the plan, and to a vertical scale of not less than one inch to 
 every 100 feet, and shall show the surface of the ground (e) 
 mai-ked on the plan, and the intended level of the proposed 
 work, and a datum horizontal line, which shall be the same 
 throughout the whole length of the work, or any branch 
 thereof respectively, and shall be referred to some fixed 
 point stated in writing on the section, near either of the 
 termini.— H. C. 25 ; H. L. 223, s. 5. 
 
 (e) See the case of the Cambridge and Lincoln Line, ante, 
 App. 11. p. ccxxvi., where the preamble was negatived on the 
 ground of the section showing the whole line of country beyond a 
 certain point to be ten feet lower than it really was.
 
 Parliamentary Practice. ccliii 
 
 Distances .to be marked on Plan in Miles and Furlongs, and 
 Memorandum of Curves. 
 
 That in all cases where it is proposed to make, vary, ex- 
 tend or enlarge ant/ railway, the plan shall exhibit thereon 
 the distances in miles and furlongs from one of the termini ; 
 and a memorandum of the radius of every curve not exceed- 
 ing one mile in length, shall be noted on the plan in miles, 
 furlongs and chains. — H. C. 40 a; H. L. 227, s. 3. 
 
 Line of Railuay on Section to correspond with upper surface of 
 Rails, 
 
 That in every section of a railway, the line marked 
 thereon shall correspond with the upper surface of the rails. 
 — H. C. 41 ; H. L. 227, s. 4. 
 
 Vertical Measures to be marked at Change uf Gradient. 
 
 That distances on the datum line shall be marked in miles 
 and furlongs, to correspond with those on the plan ; that a 
 vertical measure from the datum line to the line of railway 
 shall be marked in feet and inches at each change of the 
 gradient or inclination ; and that the proportion or rate of 
 inclination between each such change shall also be marked. 
 — H. C. 41a; H. L. 227, s. .'^. 
 
 Height of Railway over or under surface to be marked at every 
 Crossing of a Road, 6;c. 
 
 That the height of the railway over or under the surface 
 of every turnpike road, public carriage-road, navigable river, 
 canal or railway, or junction with a railway, and (he height 
 and span of every arch of all bridges and viaducts, shall be 
 marked in figures at every crossing thereof, and the extreme 
 height over or under the surface of the ground shall be 
 marked for every embankment and cutting; and if any 
 alteration in the present level or rate of inclination of any 
 turnpike road, carriage-road or railway be intended, then 
 the same shall be stated on the said section, and each num- 
 bered ; also that cross sections, in reference to the said num- 
 bers, on a horizontal scale of one inch to every 330 feet, 
 and on a vertical scale of one inch to every forty feet, shall 
 be added, to explain the nature of such alterations more 
 clearly.— H. C. 42 ; H. L. 226, s. 6. 
 
 Tunnelling and Viaduct to be marked. 
 
 That where tunnelling as a substitute for open cutting, or 
 a viaduct as a substitute for solid embankment, be intended,
 
 ccliv Appendix. 
 
 the tunnelling shall be marked by a dotted line on the plan, 
 and shall also be marked on the section, and the viaduct 
 shall be marked on the section. — H. C. 43 ; H. L. 227, s. 7. 
 
 Standing Orders as to the Deposit of Plans, &;c, with Clerhs of the 
 Peace, S^c. to be printed, and a Copy delivered with the Plan, 
 
 That copies of so much of the standing orders of the House 
 of Lords on private bills as relates to the deposit of plans, sec- 
 tions, books of reference, and other books and writings, or 
 extracts or copies of or from the same, with the clerks of the 
 peace of counties in England, or Ireland, sheriff clerks in 
 Scotland, parish clerks in England, schoolmasters in Scot- 
 land, town clerks of royal burghs in Scotland, clerks of the 
 union in Ireland, and other persons, be delivered to every 
 such clerk of the peace, sheriff clerk, parish clerk, school- 
 master, clerk of the union, and other person, at the same 
 time with the plan or other writing, or extract or copy of or 
 from such plan or other writing, deposited with him. — 
 H. L. 223, s. 11. 
 
 Clerks of Peace, 5fc. to indorse a Memorial on Plans, S;c., denoting 
 the Time at which the same were lodged. 
 That the clerks of the peace, or sheriff clerks, or their 
 respective deputies, do make a memorial in writing upon 
 the plans, sections, and books of reference so deposited with 
 them, denoting the time at which the same were lodged in 
 their respective offices, and do at all seasonable hours of the 
 day permit any person to view and examine one of the 
 same, and to make copies or extracts therefrom; and that 
 one of the two plans and sections so deposited be sealed up 
 and retained in the possession of the clerk of the peace or 
 sheriff clerk until called for by order of one of the two 
 houses of parliament. (See 1 Vict. c. 83.)— H. C. 26; H. 
 L. 223, s. 6. 
 
 Plans and Sections of Railways with Boohs of Reference to be 
 deposited at the Board of Trade, 
 
 That in the case of railway bills, a copy of all plans, 
 sections, and books of reference, required by the orders of 
 the two houses to be deposited in the office of any clerk of 
 the peace or sheriff clerk, on or before the 30th da)' of No- 
 vember immediately preceding the session of parliament in 
 ■which application for the bill shall be made, together with 
 a published ii>ap to a scale of not less than half an inch to 
 a mile, with the Ime of railuiaif delineated thereon, so as to 
 show its general course and direction, shall on or before the
 
 Parliamentary Practice. cclv 
 
 same day be deposited in the office of the railway depart- 
 ment of the Board of Trade.— H. C. 23 a; H. L. 227, s. 1. 
 
 Ctrpy of so much of the Plan and Section as relates to each Parish 
 to be deposited with the Parish Clerk, &;c. 
 That on or before the 31st day of December, a copy of 
 so much of the said plans and sections as relates to each 
 parish in or through which the work is intended to be made, 
 maintained, varied, extended or enlarged, together with a 
 book of reference thereto, be deposited with the parish clerk 
 of each such parish in England, the schoolmaster of each 
 such parish in Scotland, (or in royal burghs with the town 
 clerk,) and the clerk of the union within which such parish 
 is included in Ireland. — (See Act 1 Vict. c. 83.) — H. C. 27 ; 
 H. L. 223, s. 7. 
 
 Copy of the Plans, Sections, and Books of Reference to be deposited 
 in the Private Bill Office, (f) 
 That on or before the 31st day of December, a copy of 
 the said plans, sections, and books of reference be deposited 
 in the Private Bill Office of the House of Commons. — H. C. 
 28. See also H. C. 127. 
 
 Copy of the Plans, Sections, and Books of Reference to be deposited 
 
 in the Office of the Clerk of the Parliaments. 
 
 That on or before tlie 31st day of December a copy of the 
 
 said plans, sections, and books of reference shall be deposited 
 
 in the office of the clerk of the parliaments. — H. L. 223, s. 8. 
 
 3. Owners, Lessees and Occupiers. 
 
 Application to be made to Owners, Lessees and Occupiers, and 
 Lists made of Assents, Dissents, and Neuters. 
 
 That on or before the 31st day of December, immediately 
 preceding the application for a bill by which any lands or 
 houses are intended to be taken, or an extension of the time 
 granted by any former act for that purpose is sought, appli 
 cation in writing, (as to the form, see Appendix to Standing 
 
 (y") In a case where the plans deposited in the Private Bill 
 Office and with the clerks of the peace were exact copies, and 
 agreed with each other in every respect, except as to the figrtres 
 referring to their respective books of reference, though each phm 
 and book of reference was correct in itself, this was held not 
 to be a compliance with the standing orders. London and P^xe- 
 ter (Gillenham and Dunstan) Railway, session 1837, Luml. 
 Pari. Pr. p. 16.
 
 cclvi Appendix. 
 
 Orders of the two houses, and post) be made to the owners (g) 
 or reputed owners (A), lessees or reputed lessees, and occu- 
 piers, either by delivering the same personally or by leaving 
 the same at their usual place of abode, or in their absence 
 from the imited kingdom with their agents respectively, of 
 which application the production of a written acknowledg- 
 ment by the party applied to shall, in the absence of other 
 proof, be sufficient evidence ; and that separate lists be 
 made of tlie names of such owners, lessees, and occupiers, 
 distinguishing which of them have assented, dissented, or 
 are neuter in respect thereto. — H. C. 17 ; H. L. 220, s. 4. 
 
 hists of Owners, &;c. to be lodged in the Private Bill Office, and 
 the Receipt thereof acknowledged on the Petition. 
 
 That the lists of owners and occupiers be lodged in the 
 Private Bill Office; and that the receipt thereof be acknow- 
 ledged accordingh', by one of the clerks of the said office, 
 upon the said documents, and upon the petition, before it is 
 presented. — H. C. 127. 
 
 Notice to be given to Owners and Occupiei-s when the Bill is to 
 abridge any Public Work, 
 
 That previous to the presentation of a petition for a bill 
 whereby any part of a work authorized by any former act 
 is intended to be relinquished, notice in writing of such bill 
 be given to the owners or reputed owners and occupiers of 
 the lands in which the part of the said work intended to be 
 thereby relinquished is situate.— H. C. 36 ; H. L. 223, s. 12. 
 Instead of the words in italics, the order of the Lords has, 
 "before any application," also after "reputed owners," it 
 has " lessees, or reputed lessees." 
 
 (^) As to course to be pursued by tenants of estates in Chan- 
 cery on receipt of such notice, see Davis v. Combermere, 3 
 Railw. Cas. 506. There tenant for life of estates, the subject 
 of a suit, having been served with notice by a railway company 
 of their intention to apply for an act to carry their railway through 
 these estates, applied by pention for a reference to the master to 
 inquire what proceedings should be taken with reference to the 
 proposed measure, and whether it would be fit to make any and 
 what arrangements with the promoters, and that the petitioner 
 might be at Uberty to take such proceedings, and enter into such 
 arrangements. 'Jhe order was made as prayed, with liberty to 
 the petitioner to take proceedings, &c. immediately on the mas- 
 ter making his report. 
 
 (h) In the London and Exeter Railway application to re- 
 puted owners held sufficient. Luml. Pari. Pr. p. 8.
 
 Parliamentary Practice. cclvii 
 
 Time of giving Notices, &;c. 
 Except' in cases where notices are required to be affixed 
 on church doors, no notice given or application made on a 
 Sunday or Christmas-day. or before eight o'clock in the 
 forenoon or after ei^ht o'clock in the afternoon of any day 
 will be deemed valid.— U.. C. 36 a; H.' L. 224, s. 7. The 
 Lords also except out of the operation of their order the case 
 where a written acknowledgment is allowed as evidence of 
 the notice or application. — H. L. 224, s. 7. 
 
 4, Estimate and Subscription Contract, (i) 
 Estimate of Expense to be made, and Subscription under a 
 
 Contract entered into. 
 That an estimate of the expense be made and signed by 
 the person making the same, and that a subscription be 
 entered into nnder a contract, made as hereinafter described, 
 to three-fourths the amount of the estimate, (/c) — H. C. 
 29; H. L. 224, s. 1. See as to depositing estimate and 
 subscription contract in Private Bill Office, H. C. 1 27. 
 
 (i) The subscription contract must specify all the objects for 
 which application is intended to be made to parliament. In the 
 Bolton and Preston Railway petition, session 1837, the subscrip- 
 tion contract provided only for the formation of a railway be- 
 tween Bolton and Preston, whereas the petition for the bill prayed 
 in addition for leave to purchase or rent a poftion of the Lancas- 
 ter Canal and Tram Road. The committee reported that the 
 subscription contract was not in compliance with the standing 
 orders. Luml. Pari. Pr. p. 22. 
 
 (k) Doubts have arisen as to the proper mode of framing this 
 contract in a case of frequent occurrence, where one company or 
 body of promoters are seeking to obtain power from parliament for 
 the accomplishment of different extensions or Imcs of railway, for 
 which there are separate estimates. The most obvious course in 
 such a case, viz. to have a parliamentary contract for each scheme, 
 would in general offer an insuperable obstacle to the promoters' 
 design, as parties could not be found willing to execute the 
 various instruments that would be required in such a case. 
 Different methods have been adopted for obviating this diffi- 
 culty ; one has been by dividing the intended body of subscribers 
 into as many groups as there are schemes, and assigning a sepa- 
 rate group to each scheme, and then for each of such groups to 
 execute the subscription contract relating to that scheme, re- 
 serving a power under the subscribers* deed to the directors to 
 apportion the entire amount of each subscription among the dif- 
 ferent schemes in such proportions as may be ultimately found 
 necessary. Contracts framed on this principle have, in several 
 instances, it is believed, passed the house. Another method has 
 been to incorporate all the schemes in one subscription contract.
 
 cclviii Appendix. 
 
 Subscription Contract to Contain Christian and Surnames, Descrip- 
 tion and Place of Abode of Subscribers, S^c. 
 That every subscription contract contain the christian and 
 surname, description and place of abode of every sub- 
 scriber; his signature to the amount of his subscription, 
 with the amount which he has paid up ; and the name of 
 the party witnessing such signature, and the date of the same 
 respectively.— H. C. 32 ; H. L. 224, s. 4. 
 
 Subscription Contract not valid nnless entered into subsequent to 
 the last day of receiving Petitions in previous Session, 
 That as regards railway bills no subscription contract shall 
 be valid, unless it be entered into subsequent to the day fixed 
 in the session of parliament previous to that in which appli- 
 cation is made for leave to bring in the bill to which it 
 relates, as the last day on which petitions for private bills 
 may be presented, and unless the parties subscribing to it 
 bind themselves, their heirs,(/) executors, and administra- 
 tors, for the payment of the money so (/«) subscribed. — 
 H. C. 40. 
 
 and this has been held good in several instances during the 
 present session. (Case of North British, South-Eastern and 
 South IMidland Companies.'* There was, it may be observed, a 
 difference in the form of the South-Eastern and North British 
 Companies' contracts, the latter simply binding the subscribers 
 to pay the amount of their respective subscriptions towards all 
 the schemes collectively, (North British Company) ; whilst by 
 the former the subscribers covenanted to pay their money towards 
 each scheme sanctioned by parliament in the proportion which 
 the estimate for that scheme bore to the estimated cost of all the 
 schemes. This, however, was held to make no difference as to 
 the sufficiency of the instrument, 
 
 (/) Where corporate companies become subscribers to a pro- 
 jected railway, it is clear that an execution by the company as 
 such would not satisfy the above standing orders. To escape from 
 this difficulty, the common plan is in such case for certain of the 
 directors or influential members of the company to execute the 
 contract on behalf and as the trustees of the company. 
 
 (m) Objections have in several cases during the present ses- 
 sion been taken before the sub-committees on petitions to sub- 
 scription contracts on the ground of the parties with whom the 
 subscribers are made to covenant on behalf of the companies 
 being themselves subscribers, and consequently covenanting with 
 themselves for the payment of their own subscriptions, there being 
 no remedy at law in such case against those parties in case of 
 their failing to comply with the terms of the instrument, but 
 only in equity. (Case of the North Staffordshire (Potteries 
 Line) Railway.) There one of the trustees was a subscriber, and
 
 Parliamentary Practice. cclix 
 
 According to Order of Lords not valid, unless entered into subse- 
 'quent to commencement of previous Session. 
 That no subscription contract, as respects railway bills, 
 shall be valid unless it be entered into subsequent to the 
 commencement of the session of parliament previous to that 
 in which application is made for the bill to which it relates, 
 nor shall any subscription contract be valid unless the parties 
 subscribing to it bind themselves, their heirs,(»i) executors, 
 and administrators, for the payment of the money so sub- 
 scribed.— H. L. 224, s. 5. 
 
 Cases wherein Declaration may be substituted in lieu if Subscrip- 
 tion Contract. 
 That in cases where the work is to be made by means of 
 funds, or out of money to be raised upon the credit of present 
 surplus revenue, belonging to any society or company, or 
 under the control of directors, trustees, or commissioners, as 
 the case may be, of any existing public work, a declaration 
 stating those facts, and setting forth the nature of such con- 
 trol, and the nature and amount of such funds or surplus 
 revenue, and given under the common seal of the society or 
 company, or under the hand of some authorized officer of 
 such directors, trustees, or commissioners, may be substi- 
 tuted in lieu of the subscription contract, and in addition to 
 the estimate of the expense. (See as to depositing estimate 
 and declaration in Private Bill Office, H. C. 127.)— H. C, 
 30; H. L. 224, s. 2. 
 
 Cases wherein a Declaration and Estimate of Amount of Rates 
 may be stibstituted in lieu of Subscription Contract. 
 
 That in cases where the work is to be made out of money 
 
 had executed the contract. The deed, however, was allowed to 
 pass, there being a sufficient amount of subscriptions remaining 
 after deducting that of the trustee. In the case of a Scotch 
 railway (Ayrshire and Galloway), the objection was held not 
 to lie, as by the law of Scotland the jurisdiction at law and in 
 equity was vested in the same tribunal. Where the parties with 
 whom the covenants are made on behalf of the company have 
 themselves not executed the deed, an objection, it may be re- 
 marked, has been taken to the subscription contract on this 
 ground (Case of Macclesfield and Liciifield Railway, session 
 1846.) The deed, however, was allowed to pass, proof being 
 given of the acceptance of the trust by the trustees. Upon the 
 whole, it would seem to be prudent for the promoters of railway 
 projects both to choose as trustees persons who are not sub- 
 scribers, and also to procure the parties so chosen to execute the 
 instruments. 
 
 (m) See ante, p. cclviii.
 
 cclx Appendix. 
 
 to be raised upon the security of the rates, duties or revenue 
 to be created by or to arise under any bill, under which no 
 private or personal pecuniary profit or advantage is to be 
 derived, a declaration stating those facts, and setting forth 
 the means by which funds are to be obtained for executing 
 the work, and signed by the party or agent soliciting the 
 bill, together with an estimate of the probable amount of 
 such rates, duties or revenue, signed by the person making 
 the same, may be substituted in lieu of the subscription con- 
 tract, and in addition to the estimate of the expense. (See as 
 to depositing estimate, &c. in Private Bill Office, H.C, 127.) 
 — H. C. 31; H. L. 224, s. 3. 
 
 Copies of Stihscription Contract, or of Declaration, 6^c. to be 
 printed and delivered at the Vote Office, 
 
 That previous to the presentation of a petition for a bill, 
 copies of the subscription contract, with the names of the 
 subscribers arranged in alphabetical order, and the amount 
 of the deposit respectively paid up by each subscriber, or 
 where a declaration and estimate of the probable amount of 
 rates and duties are substituted in lieu of a subscription 
 contract, copies of such declaration, or of such declaration 
 and estimate, be printed at the expense of the promoters of 
 the bill, and be delivered at the vote office for the use of the 
 members of the house. — H. C. 35. 
 
 Copies of the Subscription Contract to be printed at the expense 
 of Promoters of Bill, and deposited in the Office of the Clerk 
 of the Parliament. 
 
 That previous to the second reading of the bill, copies of 
 the subscription contract, with the names of the subscribers 
 arranged in alphabetical order, and the amount of the de- 
 posit respectively paid by each such subscriber, or where a de- 
 claration and estimate of the probable amount of rates and 
 duties are substituted in lieu of a subscription contract, 
 copies of such declaration and estimate be printed at the 
 expense of the promotei-s of the bill, and be delivered at 
 the office of the clerk of the parliament for the use of the 
 House of Lords.— H. L. 224, s. 6. 
 
 5. Deposits. 
 
 One tenth part of Amount subscribed to be deposited. 
 That previous to the presentation of a petition for a rail- 
 way bill, a sum equal to one-tenth part of the amount sub- 
 scribed shall be deposited with the Court of Chancery in 
 England, if the railway is intended to be made in England ;
 
 Parliamentary Practice. cclxi 
 
 or with the Court of Chancery in England or the Court of 
 Exchequer in Scotland, if such railway is intended to be 
 made in Scotland ; and with the Court of Chancery in Ire- 
 land, if such railway is intended to be made in Ireland. 
 Ptvvidcd that the above order shall not apply to any rail- 
 way bilh which have been before parliament durin" the 
 present session, and which may be again introduced in the 
 next session, or which are already provisionally rcislered 
 or the subscription contract for zvhich may be aireadi/ exe- 
 cuted or partly executed on the tzventy-nmth day of July ; 
 but with respect to such bills, a sum eiptal to one-twentieth 
 of the amoirnt subscribed shall be deposited as before pro- 
 vided.— U. C. 39 a. 
 
 That as respects all bills except railway bills, it be proved 
 to the satisfaction of the committee before whom the com- 
 pHance with the standing orders shall be proved, that a sum 
 equal to one-twentieth part of the amount subscribed, and 
 as respects railway bills, a sum equal to one-tenth of the 
 amount subscribed, has been deposited with the Court of 
 Chancery in England, if the work is intended to be done in 
 England, or with the Court of Chancery in England, or the 
 Court of Exchequer in Scotland, if such work is intended to 
 be done in Scotland, or with the Court of Chancery in Ire- 
 land, if such work is intended to be done in Ireland : pro- 
 vided that the above order, so Jar as respects the sum of 
 money to be deposited, shall not apply to any railway bills 
 which have been before parliament during the present ses- 
 sion, and which may again be introduced in the next session ; 
 but with respect to such hills a sum equal to one-twentieth 
 of the amount subscribed shall be deposited as before pro- 
 vided in cases of bills other than railway bills. (See Act 
 1 & 2 Vict. c. il7).— H. L. 224, s. 4. 
 
 6. Proceedings previous &c. to Introduction of Bill 
 
 INTO House of Lords. 
 Plans and Sections of Alterations made subsequeiilly to the Intro- 
 duction of the Bill into Parliament, to he deposited luith 
 Clerks of the Peace, &;c., and Notices thereof publiahed, and 
 Application made to Owners, &:,c. 
 
 That where any alteration shall have been made, or sliull 
 be desired by the parties to be made, after the iiilroduclion 
 of the bill into parliament, in any work the hill for which 
 shall be included in the class of bills licrcmbc-fore men- 
 tioned, and the plans and sections for which shall have 
 been deposited and the notices for which shall have been
 
 cclxii Appendix. 
 
 given as before mentioned, a plan and section of such alter- 
 ation, on the same scale, and containing the same particu- 
 lars as the original plan and section, together with a book 
 of reference thereto, shall be deposited with the clerk of the 
 peace of every county, riding, or division in England or 
 Ireland, and in the office of the sheriff clerk of every county 
 in Scotland, in which such alteration is proposed to be made ; 
 and a copy of such plan and section, so far as relates to each 
 parish, together with a book of reference thereto, shall be 
 deposited with the parish clerks of each such parish in 
 England, the schoolmaster of each such parish in Scotland, 
 or in royal burghs with the town clerk, and the c/erk of the 
 union within ichich such parish in Ireland in included, in 
 which such alteration is intended to be made, one month 
 previously to the introduction of the bill for making such 
 work into the House of Lords; and the intention to make 
 such alteration shall be published in manner before directed 
 in the London, Edinburgh, or Dublin Gazette, as the case 
 maybe, and some one and the same newspaper of the county 
 in which such alteration shall be situate, or if there be no 
 such paper printed therein, then in the newspaper of some 
 county adjoining thereto, for three successive weeks pre- 
 viously to the introduction of the bill into the House of 
 Lords; and personal apphcation, with a notice in writing 
 in the form hereinbefore mentioned, shall be made to the 
 owners or reputed owners, lessees or reputed lessees, or, 
 in their absence from the united kingdom, to their agents 
 respectively, and to the occupiers of lands through which 
 any such alteration is intended to be made ; and the con- 
 sent of such owners or reputed owners, lessees or reputed 
 lessees, and occupiers, to the making of such alteration, 
 shall be proved to the satisfaction of the committee be- 
 fore whom the compliance with the standing orders shall be 
 proved.— H. L. 223, s. 9. 
 
 Plans and Sections of Alterations to he deposited in the Office of 
 the Clerk of the Parliaments. 
 That previous to any bill for making any work, the bill 
 for which shall be included in the class of bills hereinbefore 
 mentioned, being brought to the House of Lords from the 
 Commons, in which any alteration has been made in its 
 progress through parliament, a map or plan and section of 
 such work, showing any variation, extension, or enlargement 
 which is intended to be made in consequence of such alter- 
 ation, shall be deposited in the office of the clerk of the 
 parliaments ; and that such map or plan and section shall
 
 Parliamentary Practice. cclxiii 
 
 be on the same scale and contain the same particulars as 
 
 the original map or plan and section of the said work 
 
 H. L. 223, s. 10. 
 
 Proceedings in the case of Bills to empower any Company to execute 
 any Work other than that for which it was originally esta- 
 blished. 
 
 That no bill to empower any company already constituted 
 by act of parliament to execute any work other than that 
 for which it was originally established shall be allowed to 
 proceed unless the committee on standing orders, when such 
 bill shall be referi-ed to that committee, or unless the com- 
 mittee on the bill, when the compliance with the standing 
 orders is to be proved before such committee, shall have 
 specially reported, — 
 
 1st. That a draft of the proposed bill was submitted to a 
 meeting of the proprietors of such company at a 
 meeting held specially for that purpose : 
 2nd. That such meeting was called by advertisement in- 
 serted for four consecutive weeks in the newspapers 
 of the county or counties wherein such new works 
 were proposed to be executed, or if there are no 
 newspapers published in such county or counties, 
 then in that of the nearest county wherein a news- 
 paper is published : 
 3rd. That such meeting was held on a period not earlier 
 than seven days after the last insertion of such ad- 
 vertisement : 
 4th. That at such meeting the draft of the proposed bill 
 was submitted to the proprietors then present, and 
 was approved of by at least three-fifths of such pro- 
 prietors.— H. L. 220, s. 5. 
 
 Copy of Bill to be deposited at the Board of Trade. 
 
 That in the case of railway bills a copy of every bill as 
 brought into the House of Lords be deposited in the office 
 of the railway department of the Board of Trade. — H. L. 
 227, s. 2. 
 
 With respect to Bills for the Incorporation of Companies. 
 
 That when in any bill to be hereafter introduced into this 
 House, for the purpose of estah/i.shin<i a company for carry- 
 ing on any work or undertaking, the Tiaine of any person 
 or persons shall be introduced as manager, director, pro- 
 prietor, or otherwise concerned in currying such bill into 
 effect, proof shall be required before the standing order com- 
 mittee that the said person or persons have subscribed their
 
 cclxiv Appendix. 
 
 names to the petition for the said bill, or to a printed copy 
 of the said bill, as brought up or introduced into the House. 
 
 — H. L. 22i 
 
 Section II. 
 
 PROVISIONS, &C. TO BE INSERTED IN BILLS. 
 
 1. Of Provisions required by Standing Orders of Commoas. 
 
 2. Of Provisions required by Standing Orders of Lords. 
 
 1. Of Provisions, &c. required by Standing Orders of 
 Commons. 
 
 Clause compelling Payment of Subscriptions, (n) 
 That in all bills presented to the House for carrying on 
 any work by means of a company, commissioners, or trus- 
 tees, provision be made for compelling persons who have 
 subscribed any money towards carrying any such work into 
 execution, to make payment of the sums severally sub- 
 scribed by them. — H. C. 76. 
 
 (o) Provision to be made in Bills ly which Tolls, ^'c. may he 
 levied. 
 
 That in all bills whereby any parties are authorized to 
 levy fees, tolls, or other rate or charge, clauses be inserted, 
 pro^nding for the following objects, except in so far as any 
 of such objects shall have been provided for in some general 
 act applicable to the subject matter of the bill: — 
 
 Security to be taken from Treasurer, 4'c. That security 
 be taken from the treasurer, collector, or receiver, and every 
 other officer entrusted with the collection or custody of 
 monies under the bill, for the faithful execution of his office. 
 
 Accounts to be kept. That full and accurate accounts be 
 kept of all monies received and expended under the pro- 
 visions of the bill, and that such accounts be balanced once 
 in each year at the least. 
 
 Accounts to be audited. That such accounts be duly au- 
 dited once in each year at the least, and that for sucli pur- 
 pose an auditor or auditors be appointed by some person or 
 persons not immediately connected with the commissioners, 
 
 (n) See Companies Clauses Consolidation Act, 8 Vict. c. 16, 
 s. 21, App. I. 
 
 (o) Compare with this order Companies Clauses Consolidation 
 Act, 8 Vic. c. 16, ss. 91, 101, 106, 108, 109, 115, 116, App. I.
 
 Parliamentary Practice. cclxv 
 
 directors, trustees, or other party, by whom, or by whose 
 direction or authority, such fees, tolls, rates, or charges shall 
 be levied. 
 
 Accounts, Vouchers, SjC, to be produced to Auditors. That 
 for the purpose of auditing such accounts, the commission- 
 ers, directors, trustees, or other such party as aforesaid, be 
 required to cause the accounts, together with all their books 
 and vouchers, to be produced to the auditors. 
 
 Remuneration to Auditors. That the remuneration of the 
 auditor and his expenses be defrayed out of the funds 
 levied under the bill. 
 
 Account to he annually transmitted to Clerk of Peace. 
 That an annual account, in abstract, be prepared of the 
 total receipts and expenditure of all funds levied under such 
 bill for the past year, usder the several distinct heads of 
 receipts and expenditure, with a statement of the balance 
 of the said account duly audited and certified by the chair- 
 man of the commissioners, directors, trustees, or other parties 
 aforesaid, and also by the auditors thereof; and that a copy 
 of such annual account be transmitted, free of charge, to 
 the clerk of the peace (or in Scotland to the sheriff clerk) 
 for the county, or to the clerk of the city or borough within 
 which the chief office for the management of such funds 
 shall be situated, on or before the thirty-first day of January 
 in each year, under a sufficient penalty for not jjreparing 
 and sending in the said account, to be levied by summary 
 process ; the said account to be open at all seasonable hours 
 to the inspection of the public upon payment of a fee. (a) — 
 H.C. 77. 
 
 Restrictions as to Mortgage. 
 
 That in the case of a railway bill, no company shall be 
 authorized to raise, by loan or mortgage, a larger sum than 
 one-third of their capital; and that until fifty per cent, on 
 the whole of the capital shall have been paid up, it shall not 
 be in the power of the company to raise any money by loan 
 or mortgage. — H. C. 84. 
 
 Let'el of Roads. — Fence to be made to Bridges. (/») 
 That where the level of any road shall be altered in 
 making any railway, the ascent of any turn])ike road shall 
 not be more than one foot in thirty feet ; and of any other 
 public carriage-road not more than one foot in twenty feet ; 
 unless a report from some officer of the Railway Depart- 
 (a) See Railways Clauses Consolidation Act, 8 Vict. c. 20, 
 s. 107, App. I. 
 
 (6) See ib. ss. 49, 50. 
 
 H H
 
 cclxvi Appendix. 
 
 ment of the Board of Trade shall be laid before the com- 
 mittee on the bill, recommending that steeper ascents than 
 the above may be allowed, with the reasons and facts upon 
 ■which such opinion is founded, and the committee shall 
 report in favour of such recommendation : also, that a good 
 and sufficient fence, of four feet high at the least, shall be 
 made on each side of every bridge which shall be erected. — 
 H. C. 85. 
 
 Railways not to cross Highways on same level. 
 That no railway whereon carriages are propelled by steam, 
 or by atmospheric agency, or drawn by ropes in connexion 
 with a stationary steam-engine, shall be made across any 
 turnpike road or other public carriage-way on the level, 
 unless the committee on the bill report that such a restrict- 
 tion ought not to be enforced, with the reasons and facts 
 upon which their opinion is founded. — H. C. 86. 
 
 Clauses to be iiisei-ted in Railway Bills, (b) 
 Resolved, that in all railway bills there be inserted the 
 following clauses, except where the same objects shall have 
 been provided for in some general act applicable to the un- 
 dertaking intended to be authorized by the bill : — 
 
 1. Railwai/ not to be proceeded with till certain Plans, 
 4-c. deposited. And be it further enacted, that it shall not be 
 lawful for the said company to proceed in the execution of 
 the said railway hereinbefore authorized to be made, unless 
 the said company shall have, previously to the commence- 
 ment of such work, deposited with the clerk of the peace 
 of the several counties in England or Ireland, and in the 
 office of the principal sheriff clerk in every county in 
 Scotland, in or through which the said railway hereby au- 
 thorized to be made is intended to pass, a plan and section 
 of all such alterations from the original plan and section as 
 shall have been approved of by Parliament, on the same 
 scale, and containing the same particulars as the original 
 plan and section of the railway ; and also with the clerks of 
 the several parishes in England, the schoolmasters of the 
 several parishes in Scotland, (or in royal burghs with the 
 tov/n clerk,) and the clerks of the unions in which such 
 parishes are included in Ireland, in or through which such 
 alterations shall have been authorized to be made, copies or 
 extracts of or from such plans and sections as shall relate 
 to such parishes respectively, and all persons interested shall 
 
 (b) See Railways Clauses Consolidation Act, 8 Vict. c. 20, 
 ss. 8, 11, 13, 14 ; App. I., and 1 Vict. c. 83, s. 2.
 
 Parliamentary Practice. cclxvii 
 
 have liberty to inspect and make extracts from or copies of 
 the said plans and sections, or extracts or copies thereof, 
 paying to the officer having the custody of such plan and 
 section, or of such extract or copy, tlie sum of one shilling 
 for every such inspection, and after the rate of sixpence for 
 every one hundred words copied therefrom. 
 
 2. Limiting Deviations from Datum Line described on 
 the Section. And be it further enacted, that in makinw the 
 said railway it shall not be lawful for the said company to 
 deviate from the levels of the said railway, as referred to 
 the common datum line described in the section so approved 
 of by Parliament, and as marked on the same, to any ex- 
 tent exceeding in any place five feet, or in passing through 
 towns two feet, without the consent of the owners, lessees, 
 and occupiers, of the land in, through, or over which such 
 deviation is intended to be made ; or in case any street or 
 public carriage road shall be affected by such deviation, then 
 the same shall not be made without the consent of the 
 trustees or commissioners, or if there be no such trustees 
 or commissioners, without the consent of two or more justices 
 of the peace in petty sessions assembled for that purpose, 
 and acting for the district in which such street or public 
 carriage road may be situated, or without the consent of the 
 commissioners for any public sewers, or the proprietors of 
 any canal or navigation affected by such deviation : provided 
 always, that it shall be lawful for the company to deviate 
 from the said levels to a further extent without such consent 
 as aforesaid, by lowering solid embankments or viaducts, 
 provided that the requisite height of headway prescribed by 
 act of Parhament be left for roads, streets, or canals passing 
 under the same. 
 
 3. Arches and Viaducts as marked on Plan and Section 
 to be made, Sfc. And be it further enacted, that where in 
 any place it is intended to carry the railway on an arch or 
 arches, or other viaduct, as marked on the said plan or sec- 
 tion, the same shall be made accordingly ; and where a tun- 
 nel is marked on the said plan or section as intended to be 
 made at any place, the same shall be made accordingly, i:n- 
 less the owners, lessees, and occupiers of the land in or 
 through which such tunnel is intended to be made sliall con- 
 sent that the same shall not be so made: provided always, 
 that notice of every petty sessions to be holden for the pur- 
 pose of obtaining such consent as is hereinbefore rc(|iiired, 
 shall, fourteen days previous to the hukling of such petty 
 sessions, be given in some newspaper circulating in the 
 county, and also be affixed upon the cliurch door of the 
 
 M M 2
 
 cclxviii Appendix. 
 
 parish in which such deviation or alteration is intended to 
 be made, or if there be no church, some other place to 
 which notices are usually affixed ; and provided also, that, 
 for the purpose of consenting to any deviations from the 
 said sections, and to any tunnelling or arching as aforesaid, 
 the word " owners" shall be deemed and taken to mean such 
 persons as are herein capacitated to agree for the sale of 
 and to convey land for the making of the said railway; and 
 the consent of such persons, with or without the consent of 
 anj^ other persons interested as owners in the said lands, 
 shall be deemed and taken to be sufficient for such purposes. 
 
 4. Limiting Deviations from Gradients, Curves, Tunnels, 
 SfC And be it further enacted, that it shall not be lawful for 
 the said company to deviate from or alter the gradients, 
 curves, tunnels, or other engineering works, described in 
 the said plan or section, except within the following limits, 
 and under the following conditions, viz. : — 
 
 " Subject to the above provisions in regard to altering 
 levels, it shall be lawful for the company to diminish the in- 
 clination or gradients of the said railway to any extent, and 
 to increase the said inclination or gradients as follows; (that 
 is to say) in gradients of an inclination not exceeding one 
 in a hundred to any extent not exceeding ten feet per mile, 
 or to to any further extent which shall be certified by the 
 lords of the committee of privy council for trade to be con- 
 sistent with public safetj', and not prejudicial to public in- 
 terests ; and in gradients of or exceeding the inclination of 
 one in a hundred to any extent not exceeding three feet per 
 mile, or to any further extent which shall be so certified by 
 the lords of the said committee as aforesaid : 
 
 " It shall be lawful for the company to diminish the radius 
 of any curve described in the said plan, to any extent which 
 shall leave a radius of not less than half a mile, or to any 
 furtlier extent authorized by such certificate as aforesaid 
 from the lords of the said committee: 
 
 " It shall be lawful for the company to make a tunnel, 
 not marked on the said plan or section, instead of a cutting, 
 or a viaduct instead of a solid embankment, if authorized 
 by such certificate as aforesaid from the lords of the said 
 committee. — H. C. 88. 
 
 2. Of Provisions, &c. required by Standing Orders 
 
 OF House of Lords. 
 To a great extent these are coincident with those which 
 we have just seen to be required in the Commons, the 1st,
 
 Parliamentary Practice. cclxix 
 
 2nd, and 3rd paragraphs of sect. 4, and the 1st, 2nd, 3rd, 
 and 4th paragraphs of sect. 5 of the 233rd Order of the 
 House of Lords, respectively corresponding with the 84, 
 85, 86, and 88 Orders of the House of Commons that have 
 been just stated. It is proposed accordingly to notice those 
 provisions, &c. only, which are peculiar to the House of 
 Lords. 
 
 Provision to he made in Indomre Bills, SfC, relative to 
 paying Purchase Money into the Bank, (a) Ordered, by the 
 lords spiritual and temporal in parliament assembled, That 
 in any bill included in either of the three classes above 
 mentioned, whenever any sum of money is, under the pro- 
 visions of such act, to be paid for the purchase or exchange 
 of any lands, tenements, or hereditaments, and which sum 
 of money ought to be laid out in the purchase of other lands, 
 tenements, or hereditaments, to be settled to the same uses, 
 provision shall be made in the said bill that such sum of 
 money, not being less than the sum of two hundred pounds, 
 be paid into the Bank of England, in the name and 
 with the privity of the accountant-general of the Court of 
 Chancery, to be placed to his account ex parte the com- 
 missioners under such particular bill, or under such other 
 title as by the said bill shall be directed, pursuant to the 
 method prescribed by the act of the twelfth year of King 
 George the First, chapter thirty-two, and the general orders 
 of the said court, and without fee or reward, if such bill 
 relate to England, or into one of the banks of Scotland 
 established by act of Parliament or royal charter if such 
 bill relate to Scotland, or into the Bank of Ireland, in the 
 name and with the privity of the accountant-general of the 
 Court of Chancery in Ireland, pursuant to an act of the 
 Irish Parliament of the 23rd and 24th Geo. III., and the 
 general orders of the said court, and without fee or reward, 
 if such bill relate to Ireland ; and shall, when so paid in, 
 there remain until the same shall, by order of the court into 
 which the same may be paid, or the court of session in 
 Scotland, in case the same be paid into any bank in Scot- 
 land, upon a petition to be preferred to the court in a sum- 
 mary way, be applied either in the purchase of land tax, or 
 towards the discharge of any debts or incumbrances affect- 
 ing the said lands, tenements, and hereditaments so pur- 
 chased or exchanged ; or until the same shall, upon the like 
 
 (a) See Lands Clauses Consolidation Act, 8 Vict. c. 18, ss. 
 69,70,71,72,73, App. I.
 
 cclxx Appendix. 
 
 application, be laid out in a summary way, by order of the 
 court, in the purchase of other lands, tenements, or here- 
 ditaments, to be settled to the like uses ; and in the mean- 
 time, and until such order can be made, such money may, 
 if paid into the Bank of England or Bank of Ireland, by 
 order of the court, be laid out in some of the public funds, 
 or in government or real securities, and the dividends or 
 interest arising therefrom shall, by order of the court, be 
 paid to such person or persons as would for the time being 
 be entitled to the rents and profits of such lands, tenements, 
 and hereditaments so to be purchased, conveyed, and settled : 
 and in case such sum of money shall be less than the sum 
 of two hundred pounds, and shall exceed the sum of twenty 
 pounds, then and in such case such sum of money shall, 
 with the approbation of the commissioners acting under 
 such act, or the directors of any company incorporated under 
 such act, or any three or more of them, be paid and applied 
 in manner hereinbefore directed, or may be paid into the 
 hands of two ti-ustees, to be nominated by the person or 
 persons who for the time being would be entitled to the rents 
 and profits of the lands, tenements, and hereditaments so 
 to be purchased and settled, such nomination to be approved 
 of by three or more of the said commissioners or directors, 
 and such nomination and approbation to be in writing, under 
 the hands of the person so nominating and approving ; and 
 the money so paid to such trustees shall by them be applied 
 in like manner as is before directed with respect to the money 
 so to be paid into the Bank of England, or any of the banks 
 of Scotland established by act of parliament or royal charter, 
 or the Bank of Ireland, but without any order of the court 
 touching the application thereof: and in case such sum of 
 money shall not exceed twenty pounds, then the same shall 
 be paid to the person or persons who for the time being 
 would be entitled to the rents and profits of the lands, tene- 
 ments, and hereditaments so to be purchased and conveyed, 
 for his, her, or their own use and benefit. — H. L. 228. 
 
 Time to be limited for the Completion of Works, (b) 
 That in case the work intended to be carried into effect 
 under the authority of the bill shall not have been completed, 
 so as to answer the objects of such bill, within a time to be 
 limited, all the powers and authorities thereby given shall 
 thenceforth cease and determine, save only as to so much of 
 such work as shall have been completed within such time, 
 
 (b) See Lands Clauses Consolidation Act, 8 Vict. c. 18, 
 s. 123, App. I.
 
 Parliamentary Practice. cclxxi 
 
 with such provisions and qualifications as the nature of the 
 case shall require. — H. L. 233, s. 4, par. 4. 
 
 Directors, (c) 
 
 That in every railway bill there be inserted a clause to 
 enact, " That the directors appointed by this act shall con- 
 tinue in office until the first ordinary meeting to be held 
 after the passing of the act, and at such meeting the share- 
 holders present, personally or by proxy, may either continue 
 in office the directors appointed by this act, or any number 
 of them, or may elect a new body of directors, or directors 
 to supply the places of those not continued in office, the 
 directors appointed by this act being eligible as members of 
 such new body." — H. L. 233, s. 5, par. 5. 
 
 To a great extent it may be remarked the objects of the 
 above orders are provided for by the general consolidation 
 acts of last session, (see notes to pages cclxiv. et seq. up to 
 p. cclxxi.) Therefore, where, as is usually the case, these 
 acts are incorporated with the special act, the insertion of 
 the above provisions, &c. in the latter act becomes so far 
 unnecessary. 
 
 Section III. 
 
 PROCEEDINGS IN THE HOUSE OF COMMONS. 
 
 1 . General Rules as to Conduct of Bill. 
 
 2. Petition. 
 
 3. Committee on Petition. 
 
 4. Committee on Standing Orders. 
 
 5. Presentation of Bill. 
 
 6. First Reading. 
 
 7. Second Reading. 
 
 8. Committee of Selection. 
 
 9. Resolutions of Session of 1845. 
 
 10. Classification Committee. 
 
 11. Committee on Bill. 
 
 (1.) Constitution of Committee. 
 
 (2.) Time of Meeting. 
 
 (3.) Preliminaries to First Meeting. 
 
 (4.) Powers, Functions, &c. of Committee. 
 
 (5.) General Course of Proceedings. 
 
 (1st.) On unopposed Hill. 
 
 (2ndly.) On opposed Bill. 
 
 (3rdly.) On Group of competing Lines. 
 
 12. Report. 
 
 13. Consideration of Report. 
 
 14. Third Reading. 
 
 (c) See Companies Clauses Consolidation Act, 8Vict. c. 16, 
 s. 83, App. I.
 
 cclxxii Appendix. 
 
 1. General Rules as to Conduct of Bill. 
 
 A railway bill, as it usually gives a power to levy tolls, 
 and so involves a pecuniary charge upon the subject, must 
 in general be first solicited in the House of Commons. 
 Out of the house it is taken charge of by a person styled 
 a parliamentary agent, but within the house it is (and in- 
 deed must be) entrusted to the charge of one or more mem- 
 bers. 
 
 Before any one can act as a parliamentary agent, he must 
 subscribe the requisite declaration, and be registered in a 
 book kept in the Private Bill Office, (a) 
 
 The parliamentary agent is personally responsible for the 
 due observance of the rules of parliament, and for the pay- 
 ment of all fees and charges. («) No notice for any pro- 
 ceeding upon a petition for a bill, &c. will be received at the 
 Private Bill Office, nor will any party be allowed to appear 
 or be heard upon any petition against a bill until an ap- 
 pearance has in either case been entered at that office to 
 act as parliamentary agent upon the same. Tiie parlia- 
 mentary agent may be changed, and on notice to that 
 effect being left at the above office, his responsibility ceases ; 
 a fresh appearance, however, must in such case be entered. 
 In certain cases of wilful misconduct, &c., he may be pro- 
 hibited from practising by the Speaker, and this either tem- 
 porarily or absolutely, {b) 
 
 No member of parliament, or oflScer, or clerk of the house 
 is competent to act as parliamentary agent, (r) 
 
 Upon the agent soliciting the particular bill devolves the 
 office of giving the notices prescribed by the usages of 
 the house. These are required to be delivered at the 
 Private Bill OflSce before six o'clock in the evening of any 
 day on which the house is sitting, and before two o'clock 
 on any day when the house is not sitting ; and after an ad- 
 journment, no notice can be given for the first day on which 
 it shall sit again. (</) These notices are open to inspection 
 at the Private Bill Office, and are also printed in tlie votes. 
 Saturday's notices are published and delivered to members 
 on Monday morning, {e) 
 
 The time appropriated for the consideration of private 
 business is between four and five o'clock in the afternoon, 
 
 (a) Pari. Paper, No. 88 of 1837. 
 
 (6) lb. 
 
 (c) May on Pari. d. 399. 
 
 {d) C. S. O. 147.' 
 
 (e) May on Pari. p. 399.
 
 Parliamentary Practice. cclxxiii 
 
 immediately after the meeting of the house, although private 
 petitions are often read late at night, after the other business 
 is concluded. {/) 
 
 In the progress of a private bill through the house, no 
 order can be obtained but upon motion made by a member, 
 and a question proposed and put in the usual manner from 
 the chair. The parliamentary agent gives notice to the 
 member or members undertaking the charge of the bill 
 when to attend and make the necessary motions, {g) 
 
 No private bill is allowed to pass through two stages on 
 one and the same day without the special leave of the 
 house. (A) 
 
 Daily lists of committees sitting. The clerks in the Pri- 
 vate Bill Office prepare daily hsts of all private bills and 
 petitions for private bills upon which any committee is ap- 
 pointed to sit, specifying the hour of meeting and the room 
 where the committee sit, and the same are hung up in the 
 lobby of the house, (i) 
 
 A register recording the agents' names, &c., and all the 
 proceedmgs from the petition to the final disposal of the 
 bill, is kept at the Private Bill Office, and is open to public 
 inspection daily between the hours of eleven and six. (k). 
 
 2. The Petition. 
 
 The preliminary steps having been taken, the next sub- 
 ject for consideration is the petition, without which, by an 
 express Standing Order, no bill of a private nature can be 
 brought in. (/) 
 
 What petition to contain. Tiie petition should specify all 
 the features of the intended measure ; usually, indeed, it 
 follows the substance of the notice. The bill will not be 
 allowed to include any object not specified in the petition ; 
 and it may be objected in any stage of its progress through 
 the house, that the bill does not correspond with the peti- 
 tion, and in many instances, upon the objection being 
 taken and motion made in the bouse thereupon, the bill has 
 been discharged, (m) 
 
 if ) May on Pari. p. 400. 
 
 is) lb. 
 
 \h) C. S. 0. 124. But see post, Sect. IX., as to bills rein- 
 troduced during present session, 
 (i) C. S. O. 148. 
 (/c) C. S. 0. 126. 
 (0 C. S. 0. 101. 
 \m) Lumley, Pari. Pract. 85, 86. 
 
 M M 5
 
 cclxxiv Appendix. 
 
 The petition must be signed by the parties or some of 
 them, who are suitors for the bill.(?() 
 
 The petition of corporations aggregate must be under 
 their common seal, (o) 
 
 The petition must have annexed to it a printed copy of 
 the proposed bill, {p) and a declaration in writing, signed by 
 the agent, as to the class and powers thereof; {q) and the 
 agent is to see that the receipt of all plans, &c. required 
 by the standing orders to be deposited in the Private BUI 
 Office, is acknowledged by one of the clerks in that office, 
 upon such documents and on the petition, before it is given 
 to the member to present, (r) A copy of every bill annexed 
 to a petition must also be deposited at the Board of Trade 
 on or before the day of the presentation of the petition ; (s) 
 and likewise a copy of the agent's declaration must be de- 
 posited there, {t) So likewise, previous to the presentation 
 of the petition, copies of the subscription contract, &c. must 
 be printed at the expense of the promoters of the bill, and 
 delivered at the vote office for the use of members, {u) And 
 on the day of the presentation of the petition, a copy of 
 every bill annexed to a petition and agent's declaration 
 must be deposited at the Private Bill Office for the inspec- 
 tion of all parties, (.r) 
 
 In general, all petitions for private bills are to be pre- 
 sented within fourteen days after the first Friday in every 
 session of parliament ; {y) and no petition will be received 
 afterwards, save by special leave of the house, which can 
 only be obtained on petition, showing satisfactory reasons 
 for the delay. (5) 
 
 The petition must be placed in the hands of a member of 
 the house to present. On the day when it is wished that 
 the petition should be presented, the member entrusted 
 with it enters his name on the Speaker's private business 
 list, and he will be called on in his turn by the Speaker 
 at the sitting of the house at four o'clock on the same 
 day, and the petition is referred as a matter of course to the 
 
 (n) C.S. 0.101. 
 
 (0) Lumley, Pari. Pract. 86. 
 
 (p) C. S. O. 101. 
 
 (9) C.S. O. 102a. 
 
 (r) C.S. O. 127. 
 
 Is) C.S. 0.39. 102. 
 
 (0 C. S. O. 102 a. 
 
 («) C. S. O. 35. See ante, p. cclx. 
 
 (x) C. S. 0. 128. 
 
 (3/) C. S. O. 102. 
 
 (j) May on Pari. 401.
 
 Parliamentary Practice. cclxxv 
 
 committee on petitions, and it is then in the custody of the 
 committee clerk, (a) 
 
 Should it be desired, after the petition is presented, to 
 make additional provision in the bill, a petition for that 
 purpose must be presented with the proposed clauses an- 
 nexed, {b) 
 
 3. Committee on Petition. 
 
 All petitions for private bills and for additional provision 
 are referred to the select committee on petitions for private 
 bills, appointed at the commencement of each session. It 
 consists of forty-two members, of whom three are a 
 quorum, (c) In order to facilitate its proceedings, it may 
 divide itself into sub- committees, {d) each consisting of at 
 least seven members. 
 
 In case of a bill relating to England, seven clear days 
 must intervene between the day of the presentation of the 
 petition for such bill, and that of the sub-committee sitting 
 upon it, and ten days in case the bill relate to Scotland or 
 Ireland, (e) 
 
 Also, before a sub-committee can proceed to consider a 
 petition, seven clear days' notice in writing must be given 
 by the agent for the bill at the Private Bill Office of the 
 meeting of the sub-committee; and in case of a petition for 
 additional provision, one clear day's notice is requisite ; 
 and no such notice can be given until after such petition is 
 presented. ( /') 
 
 By an order of the clerk of the House of Commons, the 
 clerks in the Private Bill Office may not take such notice 
 until it shall appear, either by an entry in the votes and 
 proceedings, or by a certificate from one of the clerks em- 
 ployed in making them up, that the petition has been re- 
 ferred by the house to the committee on petitions for private 
 bills. 
 
 If the first meeting be postponed, one clear day's notice to 
 that effect must be given by the agent for the bill at the Pri- 
 vate Bill Office, (g) By a resolution of the present session 
 no such notice is to be received save by the authority of the 
 committee on petitions. (/;) 
 
 (a) Lumley, Pari. Pract. 87. 
 (6) C. S. O. 103. 
 
 (c) C. S. O. s. 1. 
 
 (d) C. S. O. 2. 
 
 (e) C. S. O. 104. 
 
 (/) C.S. 0.129. See also resolutions of Feb. 19, post, Sect. IX. 
 
 (g) C. S. O, 130. 
 
 (h) Resolutions, Feb. 19, Votes, &c. of Commons, p. 377.
 
 cclxxvi Appendix. 
 
 Upon these sub -committees devolves the duty of consider- 
 ing whether the standing orders have been comphed with, (e) 
 Any parties, who have presented a petition to the house three 
 clear days before the first meeting of the sub-committee, com- 
 plaining of non-compliance with the standing orders, (such 
 petition being referred to the committee,) may appear and 
 be heard by themselves, their agents and witnesses, pro- 
 vided, that is to say, their petition specifically states the 
 matter complained of, and the party affected by the non- 
 compliance with the standing orders is cognizant of and 
 consents to the presentation of the petition. (/') 
 
 It has been ruled, that the term "agents" here must be 
 understood to mean "parliamentary agents," who have 
 complied with the conditions imposed by the house; and 
 accordingly, a solicitor who has not entered an appearance, 
 will not be entitled to be heard by the committee, (g) 
 
 Every such petition must have the name or short title by 
 which the bill to which it relates is entered in the votes written 
 on it at the beginning thereof {h) This order will now be 
 strictly enforced. 
 
 Compliance with the standing orders may, in some in- 
 stances, be proved by affidavits, (i) 
 
 When the sub-committee have come to their decision, 
 they report the same to the house. If it be to the effect 
 that the standing orders have been complied with, leave is 
 given to bring in the bill ; and the members to whose charge 
 the bill has been entrusted are ordered to prepare and bring 
 it in. If not, the sub-committee must report the facts upon 
 which their decision is founded, and any special circum- 
 stances connected with the case, (/c) The report in such case 
 is referred to the select committee on standing orders. (/) 
 
 4. Select Committee on Standing Orders. 
 
 This committee is appointed at the commencement of 
 every session, and consists of eleven members, together with 
 the chairmen of the committee and of the sub-committees 
 
 (e) As to the proof in such cases, see post. Sect. V. 
 
 (/) C. S. 0.9. 
 
 (g) May on Pari. p. 403 ; case of Sir R. Harland, 1844. 
 
 (h) C. S. O. Ill a. 
 
 (i) C. S. O. 10, 11, 12 J see post, Sect. V. 
 
 (k) C. S. O. 13, 
 
 (/) C. S. O. 105.
 
 Parliamentary Practice. cclxxvii 
 
 on petitions for private bills, of whom five are a quorum. {I) 
 It is their duty to report whether the standing orders not 
 complied with ought or ought not to be dispensed with, and 
 the bill or any part of it proceeded with ; and if so, upon 
 what (if any) conditions, {m) If the standing orders com- 
 mittee report in favour of the promoters of the bill, they 
 are allowed to proceed either at once or after complying 
 with the necessary conditions, according to the report of 
 the committee. The proper course to give effect to such 
 allowance is for a member to move that the report be read 
 and then that leave be given to bring in the bill, and the 
 compliance with the standing orders required by the report 
 must be proved afterwards before the committee on the 
 bill. («) If on the other hand the report be that the 
 standing orders ought not to be dispensed with, the deci- 
 sion is generally fatal to the bill, as the house can rarely 
 be induced to disturb the decision of the committee, (o) 
 Where it is sougbt to induce the house to do so, the course 
 is for the promoters of the bill to present a petition to the 
 house, praying for leave to bring in the bill again, and 
 stating fully the grounds of the appHcation. (p) 
 
 To this same committee are referred all petitions for leave 
 to dispense with any of the sessional orders of the house re- 
 lating to private bills ;(y) and it is their duty to report 
 whether such orders ought or ought not to be dispensed 
 with, (r) 
 
 5. Presentation of Bill. 
 
 When leave has been obtained to bring in a private bill, 
 it may be presented on the next or any following day, and 
 in urgent cases on the same day. (.s) It must be printed on 
 paper of a folio size (as determined by the Speaker), with a 
 cover of parchment attached to it, upon which the title must 
 be written. The short title of the bill as first entered on the 
 votes, and which must be in accordance with the subject-mat- 
 ter, distinguishes it in all future stages, and cannot be altered 
 
 (0 C. S. O. 3. 
 (m) C. S. 0. 46. 
 (n) May on Pari. 405. 
 (o) lb. 
 
 (P) lb. 
 
 (9) C. S. O. 106. 
 
 (r) lb 47. 
 
 (s) May on Pari. 406.
 
 cclxxviii Appendix. 
 
 but by special order of the house, (s) Matters to be settled 
 in committee, such as rates, tolls, fines, forfeiture, penalties, 
 &c. must be inserted in italics in the printed bill, {t) 
 
 Upon the back of the bill must be printed the name or 
 names of the member or membei's ordered to bring in the 
 bill, (m) 
 
 On the presentation of the bill, eight copies must by the 
 Speaker's order be delivered at the Public Bill Office, and 
 afterwards a copy of an amended breviate of every private 
 bill. It must also be remembered, that one copy of every 
 private bill, and two copies of the printed breviate, and two 
 copies of the amended breviate and amended bill, are to be 
 sent to the Private Bill Office for the use of the Board of 
 Trade, {v) 
 
 6. First Reading. 
 
 The bill may be read a first time immediately after it is 
 presented, though this cannot be done until printed copies 
 have been delivered to the doorkeepers for the use of the 
 members, (.r) Care should be taken to advance the bill 
 through the preparatory stages with all due speed, as a day 
 is named by the house at the beginning of the session, after 
 which no private bill can be read a first time. This day 
 is generally about seven weeks from the first day of the 
 session, {y) 
 
 By a resolution of the present session, no railway bill is to 
 be read a first time later than the next day but one after the 
 report of the committee on petitions or of the standing order 
 committee on such bill, as the case may be, shall have been 
 laid on the table, except by special order of the house. (2) 
 
 7. Second Reading. 
 
 Three clear days, but not more than seven, except by spe- 
 cial order of the house, (a) must elapse between the first and 
 second reading of the bill, and the agent must give three 
 
 (0 C. S. 0. 107. 
 (0 C. S. 0. 108. 
 (u) Ridd. Pari. Pr. 66. 
 (d) May on Pari. 406. 
 (1) C. S. O. 109. 
 ly) May on Pari. 407. 
 
 (s) See Second Report of Select Committee in Commons on 
 Railways, 6th resolution, post, Sect. IX. 
 (a) Ibid., 7th resolution.
 
 Parliamentary Practice. cclxxix 
 
 clear days' notice in writing at the Private Bill Office of 
 the day proposed for the second reading, (a) In the in- 
 terval that office has the charge of the bill, and it is exa- 
 mined there as to its conformity with the rules and standing 
 orders, {b) 
 
 The examining clerk specifies on the bill the page in 
 which any irregularity occurs. If the bill is improperly 
 drawn, or at variance with the standing orders or the order 
 of leave, the order for the first reading is discharged, the 
 bill withdrawn, and leave given to bring in another, (c) 
 
 Should any peer's name appear in the bill as trustee, 
 commissioner or proprietor of the company, it will be struck 
 out. {d) 
 
 The bill cannot be read a second time until two months 
 have elapsed from the day on which the last notice was 
 given in the newspaper, nor until the fees are paid, (e) nor 
 until one clear day after the breviate thereof has been laid 
 upon the table of the house and printed and delivered. ( / ) 
 
 By the Speakers' order, two copies of the printed breviate 
 must be sent to the Private Bill Office for the use of the 
 Board of Trade. 
 
 Upon the second reading, the principle of the bill comes 
 for the first time into discussion. If the second reading be 
 deferred for three or six months, or the bill be rejected, no 
 new bill can be offered until another session, (g) 
 
 No petition will be received complaining of non-compli- 
 ance with the standing orders subsequently to the second 
 reading, unless as to standing orders which must neces- 
 sarily be taken into consideration by the committee on the 
 bill. (A) 
 
 8. Committee of Selection. 
 After thebill has been read a second time, it is immediately 
 
 (a) C.S.O. 110, 134. 
 (h) C.S.O. 132, 133. 
 
 (c) May on Pari. 407. 
 
 (d) Speaker's Order. 
 
 (e) C.S.O. 112,114, 115. The breviate contains a statement 
 of the object of the bill and a summary of the proposed enact- 
 ments ; it also points out any variation from the general law, 
 which will be effected by the bill ; it is prepared by the Speaker's 
 counsel, under his directions.— May on Pari. 408 ; C. S. O. 1 1 3. 
 
 (/) See 2nd Rep. of Sel. Coram, on Railways in Commons, 
 8th Resolution, post, Sect. IX. 
 (g) May on Pari. 408. 
 (h) C.S.O. 111.
 
 cclxxx Appendix. 
 
 committed, and referred to the Committee of Selection, (a) 
 This committee is appointed at the commencement of the 
 session, and consists of the chairman of the Standing Or- 
 ders Committee, and the chairmen of the committee and of 
 the sub-committees on petitions for private bills, three of 
 whom are a quorum. (6) It is their office to appoint the 
 committee on the bill. For their guidance in the discharge 
 of this duty, the Standing Orders lay down certain rules. 
 These rules estabhsh a difference between opposed and un- 
 opposed bills, the latter being referred to the chairman of 
 the Committee of Ways and Means, and the members who 
 have prepared and brought in the bill ; (c) whereas opposed 
 bills are referred to the members on the Speaker's list of the 
 county, &c., to which the bill specially relates, and to such 
 number of members not locally interested in the bill as the 
 Committee of Selection under the circumstances of the case 
 deem proper, {d) 
 
 The inefficiency of the above mode of appointing com- 
 mittees on bills for railways, which soon manifested itself in 
 the course of the rapid increase of railway business, led, 
 during the two last sessions, to a change in the machinery 
 of those committees. The nature and extent of that change, 
 and the new system that it created during the last session 
 may be best understood from a review of the resolutions by 
 which it was introduced. It is proposed, therefore, to pro- 
 ceed at once to the consideration of such resolutions. 
 
 9. Resolutions (e) on Railway Bills, March 4, 1845. 
 
 1 . That a committee of five members be appointed, to 
 be called the Classification Committee of Railway Bills, and 
 that three be the quorum of such committee. 
 
 2. That copies of all railway bills presented to the house, 
 and a list of all projected railways, of which plans and sec- 
 tions have been deposited in the Private Bill Office, be laid 
 before the said committee, together with all reports and 
 minutes of the Board of Trade upon such projected rail- 
 ways, which shall have been laid, or which shall from time 
 to time be laid, before the house. 
 
 3. That the Committee of Classification shall form into 
 
 (a) C.S. 0.116. 
 (6) C.S. 0.4. 
 
 (c) C. S, O. 6. 
 
 (d) C. S. O. 5. 
 
 (e) For resolutions of this session, see post, Sect. IX.
 
 Parliamentary Practice. cclxxxi 
 
 groups all railway bills or projects which, in their opinion, 
 it would be expedient to submit to the same committee. 
 
 4. That committees on railway bills during the present 
 session of parliament shall be composed of a chairman and 
 four members, to be appointed by the Committee of Selec- 
 tion. 
 
 5. That each member of a committee on a railway bill 
 or bills shall, before he be entitled to attend and vote on 
 such committee, sign a declaration that his constituents 
 have no local interest, and that he himself lias no personal 
 interest for or against any bill or project referred to him ; 
 and no such committee shall proceed to business until the 
 whole of the members thei-eof shall have signed such decla- 
 ration. 
 
 6. That the promoters of a railway bill shall be pre- 
 pared to go into committee on the bill on such day as the 
 Committee of Selection shall, subject to the order that there 
 be seven clear days between the second reading of every 
 private bill and the sitting of the committee thereupon, 
 think proper to appoint, provided that the Classification 
 Committee shall have reported on such bill. 
 
 7. That the Committee of Selection shall not appoint an 
 earlier day for the first meeting of the committee on any 
 group of bills than the twenty-sixth day after the presen- 
 tation to the house of the reports of the Board of Trade on 
 all railway projects included in such group, unless all the 
 petitions for bills relating to such projects shall have been 
 sooner presented. 
 
 8. That the Committee of Selection shall give each mem- 
 ber not less than fourteen days' notice of the week in which 
 it will be necessary for him to be in attendance, for the pur- 
 pose of serving, if required, on a railway bill committee. 
 
 9. That the Committee of Selection shall give each mem- 
 ber a sufficient notice of his appointment as a member of a 
 committee on a railway bill, and shall transmit to him a 
 copy of the fifth resolution, and a blank form of the decla- 
 ration therein required, with a request that he will forthwith 
 return it to them properly filled up and signed. 
 
 10. That if the Committee of Selection shall not within 
 due time receive from such member the aforesaid declara- 
 tion, or an excuse which they shall deem sufficient, they 
 shall report to the house the name of such defaulting 
 member. 
 
 11. That the Committee of Selection shall have the 
 power of substituting, at any time before the first meeting
 
 cclxxxii Appendix. 
 
 of a committee, another member for a member whom they 
 shall deem it proper to excuse from serving on that com- 
 mittee. 
 
 12. That power be given to the Committee of Selection 
 to send for persons, papers and records, in the execution of 
 the duties imposed on them by the foregoing resolutions. 
 
 13. That no member of a committee shall absent himself 
 from his duties on such committee, unless in the case of 
 sickness, or by leave of the house. 
 
 14. That, if the chairman shall be absent from the com- 
 mittee, the member next in rotation on the list (who shall 
 be present) shall act as chairman. 
 
 15. That committees shall be allowed to proceed so long 
 as three members shall be present, but not with a less num- 
 ber, unless by special leave of the house. 
 
 16. That if on any day within one hour after the time 
 appointed for the meeting of a committee three members 
 shall not be present, the committee shall be adjourned to 
 the same hour on the next day on which the house shall sit, 
 which had been fixed for that day. 
 
 17. That in the case of a member not being present 
 within one hour after the time appointed for the meeting of 
 the committee, or of any member absenting himself from 
 his duties on such committee, such member shall be re- 
 ported to the house at its next sitting. 
 
 1 8. That each committee shall be appointed to meet on 
 each day of its sitting not later than twelve o'clock, unless 
 by the regular vote of the committee. 
 
 19. That parties promoting railway projects, which have 
 been grouped together by the Classification Committee, 
 shall be permitted to appear before the committee on a 
 railway bill belonging to such group, and to offer evidence 
 either against the bill immediately under the consideration 
 of the committee, or in support of their own projects. 
 
 20. That in committees on a bill or bills, when such evi- 
 dence has been given, it shall be within the competency of 
 a committee to adjourn their proceedings until the bill or 
 bills for such other projects shall be before them, care being 
 taken by the Committee of Selection that in all such cases 
 the bills for the so opposing projects shall be referred to the 
 committee by which the first bill or bills had been con- 
 sidered. 
 
 21. That, as soon as the Committee of Classification shall 
 have determined what railway bills or projects are to be 
 grouped together, they shall report the same to the house.
 
 Parliamentary Practice. cclxxxiii 
 
 and all petitions against any of the said bills or projects 
 shall be presented to the house three clear days before the 
 meeting of the committee thereon. 
 
 22. That the committee on a group of railway bills or 
 projects shall hear, so far as may be necessary, parties ap- 
 pearing in support of such petitions, so as to receive without 
 interruption the whole of the evidence on the general merits 
 of all the bills or projects before them, and also on the de- 
 tails of the bill or project, or bills or projects, which they 
 shall be of opinion ought to be adopted, in order that if the 
 committee should consider that a bill or bills not yet read a 
 second time at the time of the inquiry ought to be preferred, 
 they may be enabled, when that bill or bills shall be for- 
 mally committed, to dispense with receiving any further 
 evidence, and to confine their proceedings to making such 
 amendments in the clauses as their previous investigation 
 may have shown to be necessary. 
 
 10. Committee of Classification. 
 
 In pursuance of the first of the resolutions referred to 
 above, a committee were appointed, who from time to time 
 reported to the house what bills and projects they thought 
 it expedient should be referred to the same connnittee. 
 
 The principle by which they appear mainly to have been 
 guided in coming to their conclusions was that of grouping 
 together such projects as either were or had the appearance 
 of being competing inter se, or that were intended to tra- 
 verse the same district, and consequently to form members 
 of one entire system of railway communication for those dis- 
 tricts. In one case, where several railways were intended 
 to have a common terminus, but were referred by the Clas- 
 sification Committee to different committees, (e) great diffi- 
 culty arose in consequence, each committee being unable to 
 make a final adjustment of tlie question of the common ter- 
 minus, which was finally necessitated to be reserved. 
 
 Where a bill had been included by the Classification 
 Committee in a particular group, it was not competent for 
 the committee on that group to withdraw such bill from it, 
 but there must have been an application for that purpose to 
 the house. (J') 
 
 (e) Committees on groups (DD), (EF), and (FF). 
 (/) See App. II. ante, pp. ccxxi. ccxxii.
 
 cclxxxiv Apfendix. 
 
 11. Committee on Bill. 
 
 (1.) Constitution of Committee. 
 
 These committees were composed of a chairman and four 
 members, appointed by the Committee of Selection, (g) 
 
 As long as three members were present they might pro- 
 ceed, hut not with a less number, unless by special leave of 
 the house, {h) 
 
 Each member of the committee, before he was entitled 
 to attend and vote on such committee, was obliged to sigir 
 a declaration that his constituents had no local interest, and 
 that he himself had no personal interest for or against any 
 bill or project referred to him. No such committee could 
 proceed to business until the whole of the members thereof 
 had signed such declaration, (i) 
 
 (2.) Of the Time of Meeting. 
 
 The time of the first meeting of the committee rested 
 with the Committee of Selection, who might appoint any day 
 they thought proper (subject to the order (/c) that there 
 should be seven clear days between the second reading of 
 every private bill and the sitting of the committee there- 
 upon,) and provided that the Classification Committee had 
 reported on such bill. (/) 
 
 Neither could the Committee of Selection appoint an 
 earlier day for the first meeting of the committee on any 
 group of bills than the twenty-sixth day after the presenta- 
 tion to tlie house of the reports of the Board of Trade on 
 all railway projects included in such group, unless all the 
 petitions for bills relating to such projects should have been 
 sooner presented. (/») 
 
 (3.) Preliminary Steps to First Meeting.(n) 
 
 The agent for the bill must give, at the Private Bill 
 Office, seven clear days' notice in writing of the daj* and 
 hour of the first meeting of the committee, else the pro- 
 ceedings of the committee will be void, (o) He must also 
 
 (g) See 4th resolution, ante, p. cclxxxi. 
 (h) See 15th resolution, ante, p. cclxxxii. 
 (i) See 5th resolution, ante, p. cclxxxi. 
 (k) C. S. O. 117. 
 
 (/) See 6th resolution, ante, p. cclxxxi. 
 (m) See 7th resolution, ib. 
 («) C.S. O. il7. 
 (o) C. S, O. 135.
 
 Parliamentary Practice. cclxxxv 
 
 deposit there, one clear day before the meeting of the com- 
 mittee, a filled up bill, signed by himself, as it is to be 
 submitted to the committee, to a copy of which all parties 
 are entitled on payment of the charges for making out the 
 amendments, (p) 
 
 The agent must also have prepared for the committee a 
 printed bill, with all the proposed amendments written in 
 the margin, and all the proposed new clauses written on 
 separate sheets of paper. Upon this bill are written all the 
 amendments proposed to be made by the committee; it is 
 called the committee bill. (9) 
 
 Copies of the printed bill, interleaved with blank paper, 
 must be deposited in the Private Bill Office previous to the 
 meeting of the committee, (r) 
 
 If it is desired, the first sitting may, with the sanction of 
 the Committee of Selection, be postponed ; but in such case 
 notice in writing must be given by the clerk to the Com- 
 mittee of Selection, at the Private Bill Office, on the day of 
 the postponement, (s) 
 
 (4.) The Powers, Functions, ^-c. of the Committee, and of 
 the Chairman in particular. 
 
 If any report made under the authority of the Board of 
 Trade upon any bill, or the objects thereof, be laid before 
 the house, such report is referred to the committee on the 
 bill. (0 
 
 Petitions praying to be heard against a bill are usually 
 referred to the committee, but a petition against the bill 
 generally is regarded as an ordinary petition, and will not 
 be referred. Sometimes the house orders the committee to 
 hear parties conditionally in case certain clauses should be 
 proposed, {u) Every petition, unless the subject-matter of 
 complaint have arisen during the progress of the bill before 
 the committee, must be presented three clear days before the 
 day appointed for the first meeting of the committee, other- 
 wise it will not be heard without a special instruction from 
 the house, {v) The house will not receive a petition com- 
 plaining solely of a non-compliance with the standing orders 
 
 (p) C. S. 0. 136. 
 {q) Lumley, Pari. Pr. 119. 
 (r) lb. 
 
 («) C. S 0.56. 137. 
 
 (() lb. 117 a. As to reports of Board of Trade, see post, 
 App.V. 
 
 (m) May on Pari. 413. 
 {y) C. S. O. 67.
 
 cclxxxvi Appendix. 
 
 after the second reading, except where it relates to such as 
 must be necessarily taken into consideration by the committee 
 on the bill, (x) Neither will any petition, though referred 
 to the committee, be taken into consideration by them 
 unless it distinctly specifies the grounds of objection, and 
 then the petitioners will only be heard on such grounds so 
 stated. If inaccurately specified in the opinion of the com- 
 mittee, they may direct a more specific statement (j/) 
 in writing to be given in to them, but limited to such 
 grounds so inaccurately specified, (z) Every petition pre- 
 sented to the house relating to any private bill before the 
 house must have the name or short title by which such bill 
 is entered in the votes written on it at the beginning thereof, 
 and this, whether such petition be in favour or against the 
 bill, or relating to the non-compliance with the standing 
 orders, (a) 
 
 The committee are to see that the provisiims required by 
 the standing orders are inserted in the bill. (6) Indeed, 
 the promoters should and generally do insert these provi- 
 sions in the original draft ; if omitted, the committee order 
 their insertion. Supposing the bill to incorporate the three 
 consolidation acts, the insertion in such bill of the provi- 
 sions which are embraced by those acts becomes of course 
 unnecessary. 
 
 The committee are not competent to examine into the 
 compliance with such standing orders as are directed to be 
 proved before the committee on petitions for private bills, 
 unless by special order of the house, (c) 
 
 The principal matters to be investigated by the committee 
 are pointed out by the standing orders, (d) 
 
 It is competent for the committee on a railway bill, 
 upon the report of the officer of the railway department of 
 the Board of Trade to that effect, to recommend that in the 
 alteration of the level of roads steeper ascents than are spe- 
 cified in the standing orders be allowed, or to report that a 
 
 (i) C. S. 0. 111. 
 
 <2/) C. S. O. 66. 
 
 (0 lb. 
 
 (a) C.S. O. Ill a. 
 
 (6) C. .S. O. 76, 77, 84, 85, 86, 88 ; see ante, pp. cclxiv— 
 cclxviii., where see also how far these provisions are embraced 
 by the three consolidation acts of the session of 1845. 
 
 (c) C. S. O. 72 ; as to proof of compliance with standing 
 orders, see post, Sect. V. Also see ante, p. ccxxvi. as to what 
 held not to be a standing order objection, and post, Sect. VI. 
 
 (d) See post, Sect. V.
 
 Parliamentary Practice. cclxxxvii 
 
 railway should be made across a road on the level. In any 
 such case they are to report the reasons and facts upon 
 which such opinion is founded. (/) 
 
 The committee have power to alter the plan deposited in 
 the Private Bill Office, (g) 
 
 It is not competent for the committee to sanction alter- 
 ations in the project before them which are not within 
 the order of leave nor in compliance with the standing 
 orders. Accordingly, where it is sought by the promo- 
 ters of the bill to introduce alterations in their scheme 
 ■which are beyond the above limitations, the only course for 
 them to pursue is to present a petition to the house, stating 
 specifically what it is they desire, and then go again before 
 the standing orders committee. If their report is in favour 
 of the application, it is then competent for the committee 
 on the bill to take the proposed alterations into their con- 
 sideration. 
 
 If the report of the standing orders committee is against 
 granting the desired leave, that is fatal to the entire scheme, 
 at least where the proposed alteration is essential to its suc- 
 cess ; or if it extend only to a part of the promoters' pro- 
 ject, they must abandon that part. Thus, in the case of the 
 South Wales Railway, it was proposed by the promoters to 
 cross the Severn by means of a bridge of certain dimen- 
 sions. But in order to do this it was necessary to obtain 
 the consent of the Admiralty to the proposed method of 
 crossing, which was refused. The company, upon this, de- 
 termined upon substituting a tunnel under in lieu of a bridge 
 over that river, and accordingly presented a petition to the 
 house for leave to alter their plans accordingly, which peti- 
 tion was referred by the house to the standing orders com- 
 mittee. The report of the committee being unfavourable 
 to the petitioners, they decided on abandoning the part of 
 their project which involved the crossing of the river — 
 group (P). And the same thing took place in the case of 
 the Hereford and Monmouth Raihvaj — group (P). 
 
 If it be proposed to insert in the bill any new or addi- 
 tional matter foreign to the bill, or not within tjic scope of 
 its title, or to leave out of tlic bill any subject-matter 
 expressed in its title, the committee must be expressly 
 empowered to make provisions for all such purposes by 
 previous instructions from the house. If it is proposed to 
 
 (/) C. S. O. 85,86. 
 
 Ig) Lumley, Pari. Tract, p. 128.
 
 cclxxxviii Appendix, 
 
 divide one bill into two, an instruction must be given for 
 that purpose to the committee on the bill, it not being 
 within their ordinary power, {h) 
 
 If it be intended to consolidate two bills, both of them 
 must be first committed to the same committee, and then 
 an instruction be given for uniting the two into one. These 
 instructions should be obtained after the bill has been com- 
 mitted and before the committee sit, or before they proceed 
 on that part of the bill which will be affected by the in- 
 struction, (j) 
 
 The course is, in such cases, to procure some member to 
 move the house for the necessary instructions, {h) 
 
 Adjournment. The committee have the power of ad- 
 journing to a future day; though if the adjournment be too 
 long, the house will interfere. Notice must in such case 
 be given by the committee clerk at the Private Bill Office 
 of the day and hour to which the committee is adjourned, {k) 
 
 If a committee adjourn without naming another day for 
 resuming their sittings, or from the absence of a quorum are 
 unable to proceed to business or to adjourn to a future day, 
 &c., they have no power of re-assembling, until they are 
 revived, as it is termed, by an order from the house. {I) 
 
 Witneaaes. The committees upon private bills have no 
 power of sending for persons, papers, and records. The 
 parties are generally able to secure the attendance of their 
 ■witnesses, without ap])lying to the committee ; but when 
 they desire to compel the attendance of an adverse or un- 
 willing witness, they should apply to the committee, who 
 when satisfied that due diligence has been used, and that 
 the witness is material to the inquiry, direct a special report 
 to be made to the house, upon which an order is made by 
 the house to oblige the witness to attend and give evidence 
 before the committee, (/n) 
 
 In one case the production of documents in the nature of 
 private documents was not enforced before a committee. 
 The Mullingar Company, and the Grand Junction Canal, 
 had at one time combined to oppose the Dublin and Gal- 
 way Line. For the purpose of this opposition, certain 
 plans, &c. had been prepared by the engineers of the 
 
 (h) For an instance where this was done, see case of London 
 and York, ante, p. ccxxxviii. 
 
 (i) Bramwell on Bills, 96,97, ed. 1837. 
 
 (k) C.S. O. 138. 
 
 (I) May on Pari. 430. 
 
 (m) Ibid. 428.
 
 Parliamentary Practice. cclxxxix 
 
 two companies, and worked on in common. These plans, 
 &c., by some accident, remained in the hands of the Mul- 
 lingar Company's agents; the latter company, having aban- 
 doned their opposition to the Dublin and Galway Line, the 
 Canal Company, who wanted to get at these documents for 
 the purposes of their continued opposition, called on the 
 secretary of the Mullingar Line to produce them before the 
 committee, which he objected to do. Mr. Rowe, on behalf 
 of the Canal Company, argued that they were not private 
 documents. The committee, after deliberation, intimated 
 to the parties that they considered the papers asked for in 
 the light of private documents, over wliich the committee 
 had no control. There was a reference to the Speaker, but 
 no further steps were taken in the matter, (o) 
 
 The committee must report the bill to the house whether 
 they have or not agreed to the preamble or gone through the 
 sevei'al clauses or any of them ; and when any alteration 
 has been made in the preamble of the bill, such alteration, 
 together with the ground of making it, is to be specially 
 stated in the report, (p) 
 
 Duties of chairman of committee. There are certain 
 duties devolving more particularly on the chairman of a 
 committee both during the progress of the bill through the 
 committee, and also in relation to the report thereon. 
 Every plan and book of reference produced in evidence 
 before the committee must be signed by the chairman with 
 his name at full length, and he must also mark every altera- 
 tion with his initials, and every such plan and book of re- 
 ference must be deposited in the Private Bill Office ((/). 
 The chairman must sign with his name at length a printed 
 copy of the bill, to be called the committee bill, on which 
 the amendments are to be fairly written, and mark with his 
 initials the several clauses added in committee, (r) 
 
 The chairman must likewise report to the house that the 
 allegations of the bill have been examined; and whether 
 the parties concerned have given their consent (where such 
 consent is required by the Standing Orders) to the satis- 
 faction of the committee, (s) 
 
 (o) Case of Dublin and Galway Line, Group (Z), Supp. to 
 Votes of Commons, 1845, p. 1 102. 
 (p) S. 0.82. 
 (q) S. O. 79. 
 (r) S. O. 80. 
 (s) S. 0.81. 
 
 N W
 
 ccxc appendix. 
 
 (5.) General Proceedings of Committees. 
 
 These are regulated partly by the usage of parliament and 
 partly by the Standing Orders, &c. 
 
 Every question is put by the chairman and determined 
 by a majority of the committee ; the chairman, where the 
 numbers are even, having a casting vote. During the ad- 
 dress of counsel and the examination of witnesses the room 
 is an open court, and it is only closed during the delibera- 
 tions of the committee, at the close of which the parties are 
 readmitted to hear and be acquainted with the decision by 
 the chairman, if it concern them, (u) The committee clerk 
 takes down the names of the members present, and enters 
 them with their votes on division in the minutes, (a) 
 
 Upon the first meeting of the committee, the parties are 
 called in. The counsel in support of the bill appear before 
 the committee ; the petitions against the bill are read by the 
 committee clerk, and the counsel or agent in support of 
 each present themselves. The agent must deliver to the 
 committee clerk a certificate, signed by one of the clerks in 
 the Private Bill Office, that he has entered his name as 
 agent for each such petition, without which the committee 
 cannot allow the petitioner to be heard, {y) 
 
 If no parties counsel or agent appear when a petition is 
 read, the opposition on the part of the petitioners is con- 
 sidered as abandoned ; and unless they state their intention 
 to oppose the bill before the case is opened, they are not 
 afterwards entitled to be heard without special leave from 
 the committee, (z) 
 
 Order of precedence. The parties now being before the 
 committee, the first question to be decided, under the 
 grouping system of the last year, was, as to the order 
 of precedence. This was a matter resting entirely in the 
 discretion of the committee ; as far, however, as any general 
 rule can be laid down on this subject, the different com- 
 mittees would appear in the main to have followed the sug- 
 gestions drawn up for their consideration by the chairmen 
 of committees. These suggestions, (a) so far as relates to the 
 question of order, were as follows : 
 
 1. If parties agree as to the order of precedence in which 
 
 (w) May on Pari. 423. 
 (x) S.O. 71. 
 (y) Lumley, 125. 
 (s) May ou Pari. 424. 
 
 (a) For suggestions issued in the present session, see post, 
 Sect. X.
 
 Parliamentary Practice. ccxci 
 
 bills or projects referred to tlie same committee shall be 
 taken, the committee will adopt their agreement. 
 
 2. If parties do not agree, the committee will decide the 
 order of precedence, without hearing arguments from coun- 
 sel. 
 
 3. In the latter case, such bills or projects in each group 
 as are unopposed will be first taken into consideration. 
 
 4. Such bills or projects in each group as are opposed, 
 but not by competing lines, will be next taken into con- 
 sideration. 
 
 5. With respect to competing lines, the committee will 
 subdivide if necessary the bills or projects in each group, so 
 as to distribute into separate classes the bills or projects for 
 such lines as compete inter se. 
 
 6. That as a general rule, in cases of non-competing lines, 
 the bill or project first read twice, will be first proceeded 
 with by the committee. 
 
 7. That with regard to the separate classes into which 
 competing lines have been distributed, the committee must 
 exercise its discretion according to the circumstances of the 
 case, in determining the order of precedence in which such 
 classes are to be taken. That with regard to the bills or 
 projects in each class, those which have been read a second 
 time shall be taken first, and in the order of such second 
 reading ; and that the bills or projects which have not been 
 read a second time, shall be next taken in the order in 
 which the petitions for such bills or projects have been pre- 
 sented to the house. 
 
 In some instances, the committee (in the absence of any 
 agreement on the subject between the parties) adopted a 
 territorial arrangement as a guide to determining the order 
 of precedence of different sub-groups of competing lines. 
 Thus the committee on group (DD) determined to proceed 
 first with the lines north of the Edinburgh and Glasgow, one 
 of the groups submitted to them. 
 
 It was competent for the committee, after they had de- 
 termined on the order of precedence, again to change that 
 order, and they were in some instances accordingly induced 
 to do so on the application of counsel. So where tiiey 
 had found it necessary to distribute tlie bills submitted to 
 them into separate classes, they might afterwards shift a 
 bill from one class into another, if sufficient reason were 
 shown them for so doing, (b) 
 
 1st. Unopposed bill. The order of precedence being deter- 
 
 (6) See ante, p. ccxviii. 
 N N 2
 
 ccxcii Appendix. 
 
 mined, suppose (as was usually the case) the case of an un- 
 opposed line to be first brought before the committee. 
 
 There being no opponents, the promoters had only to 
 satisfy the committee of the propriety of the several pro- 
 visions of the bill, that the clauses required by the standing 
 orders had been inserted therein, and that such standing or- 
 ders as must be proved before the committee had been 
 complied with. Where it is proposed to make extensive 
 alterations in the original bill anuexed to the petition, it is 
 liable to be ordered to be withdrawn on the report of the 
 chairman, (d) 
 
 2ndly. Opposed bill. Suppose next the case of a line 
 opposed by landowners, &c., but not by a rival or competing 
 line. The practice in regard of such hues was somewhat 
 modified during the last session by the suggestions already 
 alluded to, and which, so far as related to such hnes, were 
 as follows : 
 
 That in a non-competing line, the counsel in opening the 
 case is to be restricted to a statement of facts. The counsel 
 for the opponents may either address the committee previous 
 to offering evidence, or afterwards, but not both ; and the 
 counsel for the bill or project may reply. 
 
 Suppose then the case of a non-competing line before the 
 committee, the senior counsel for the bill opens the case 
 for the promoters, the character of which depends upon 
 the parts of the bill to which objections are taken by the 
 opposers. The preamble is always first considered, and 
 if the preamble be itself opposed, the counsel for the bill 
 addresses the committee more particularly as to its general 
 expediency, and calls witnesses in confirmation of the 
 allegations contained in the preamble. This is also the 
 proper stage for producing evidence to satisfy the committee 
 upon various points on which the standing orders require 
 them to report to the house. The witnesses may be cross- 
 examined by the counsel who appear to support petitions 
 against the preamble, but not by the counsel for parties 
 whose petitions complain, not of the preamble but of par- 
 ticular provisions in the bill. Upon the cross-examination, 
 the witnesses may be re-examined by the counsel for the 
 bill, (e) 
 
 The committee, who have all the petitions before them, 
 are to decide in each case whether counsel are entitled to be 
 heard against the preamble. 
 
 (<f) May on Pari. 415. 
 (e) Ibid. 424.
 
 Parliamentary Practice. ccxciii 
 
 The time for objecting to the right of a petitioner against 
 the bill to be heard before the committee, is either upon the 
 entry of the appearance of such petitioner, or when he ap- 
 plies to cross-examine any one of the witnesses called for 
 the bill, or to address the committee on his petition. (/) 
 
 The grounds of objection thereto on the part of the pro- 
 moters are usually twofold, the limited nature of the party's 
 interest, and the informality of the petition. (^). Thout^h 
 the petition state specially the desire of the parties by 
 •whom it is preferred to be heard against the preamble, 
 which it is always desirable it should do where the pe- 
 titioners object to the entire bill, yet that will not entitle 
 them to be heard, if the committee determine that they 
 have not a sufficient interest to give them a locus stujidi {h) 
 before the committee, or that the petition is informal, (i) 
 
 The counsel who objects to a party being heard, is en- 
 titled to support his objection by a speech, and is answered 
 by the counsel claiming to be heard, to whom he may re- 
 ply. Sometimes the committee decide without having 
 heard counsel, and are afterwards induced to hear them 
 upon that decision with a view to its re-consideration, (j) 
 
 In pursuance of the suggestions just considered, counsel., 
 during the last session, where they were allowed to be heard 
 against the preamble, were in general restricted to one ad- 
 dress to the committee, which they might make either before 
 or after offering their evidence. Where the former course 
 was preferred, one of the counsel opposing the bill opened 
 the case for the petitioners ; witnesses were then called and 
 examined in support of the petition, cross-examined by the 
 counsel for the bill, and re-examined by the counsel for the 
 petitioners, and the leading counsel for the bill then replied 
 on the whole case. 
 
 Where the latter course was adopted, the only difference 
 was, that the address of counsel followed instead of preceded 
 his evidence. 
 
 Where no witnesses were called for the petitioners, the 
 counsel for the bill had, however, no right to reply, unless 
 new matter (such as acts of parliament or precedents) iiad 
 
 (/) Ridd. Pari. Pract. p. 06. 
 Ig) See Supp. to Votes, 1843. p. 131 . 
 
 (h) See question of locus standi under grouping system of 
 1845, considered, post, p. cccxvii. 
 
 {i) May on Pari. 425, in the Glasgow Gas Bill, 1843. 
 (J) See Supp. to Votes, 1843, p. 131 ; May on Pari. 425.
 
 ccxciv Appendix. 
 
 been introduced by tbe opposite counsel, and in tbis case 
 his reply must have been confined to sucb new topics, (k) 
 
 When the arguments, &:c. upon the preamble have been 
 heard, the room is cleared and the question put, " That the 
 preamble has been proved." If it be carried in the negative, 
 the committee report to that effect to the house, without 
 stating reasons ; if in the affirmative, the parties are again 
 called in, and the committee proceed to go through the bill, 
 clause by clause, and to fill up the blanks. 
 
 Preamble. Subject to certain limitations, the committee 
 may make alterations in the preamble. Where therefore the 
 committee are favourably disposed towards a project before 
 them in part only and not altogether, it is competent for 
 them to amend the preamble by striking out such portions 
 thereof as they think ought not to pass, and then to report 
 in favour of the preamble as so amended; provided, that is 
 to say, the essential character of the bill is not thereby 
 altered. 
 
 So likewise the promoters of the bill may withdraw any 
 part of the preamble without evidence being required of the 
 truth of the part withdrawn, provided the portion withdrawn 
 be unnecessary, and do not involve any fundamental prin- 
 ciple on which the bill as originally presented was founded, 
 and that sufficient be retained in the preamble to show the 
 expediency of the measure so abridged, and to justify the 
 provisions of the bill ; and if it be not one on the credit of 
 which the house may be supposed originally to have granted 
 leave to bring in the bill. (/) 
 
 Clauses. After finding the preamble proved either wholly 
 or in part, the committee, as has been before observed, 
 proceed to go through the bill clause by clause, and to fill 
 up the blanks. In pursuance of a resolution of the present 
 session the committee now fix the tolls and determine the 
 maximum rates of charge for the conveyance of passengers, 
 goods, &c., which are inserted in the bill ; or if for anj' 
 reason they deem it inexpedient to fix and determine such 
 tolls, &c., then they are required by the above mentioned 
 resolution to report specially to the house their reason for 
 such omission, and such report is to accompany their report 
 on the bill. 
 
 (k) May on Pari. 425. 
 
 (/) Luml. Pari. Pract. p. 126. See the case of the Southwark 
 Market bill and of the Lough Swilley Canal, 6iC., and Drainage 
 petition quoted in notes, ibid. p. 127.
 
 Parliamentary Practice. ccxcv 
 
 It is competent for the committee to authorize the pro- 
 moters of a bill to increase their capital beyond the amount 
 of their original estimates, provided that it be necessary for 
 properly attaining the object of their act, and provided that 
 the increase be not carried to such an extent, that {m) the 
 amount subscribed does not equal three-fourths of the capital 
 so increased. (?i) 
 
 It is otherwise, it seems, where the object of such in- 
 crease of capital cannot be proved to be for the objects of 
 the act, as for instance, to enable the promoters to buy off the 
 opposition of a competing line, and the like. 
 
 In such case the promoters must, it seems, present a 
 petition to the house, specifying what it is they desire, and 
 then go again before the standing orders committee. 
 
 Where petitions have been presented against a clause or 
 proposing amendments, this is the time for the parties being 
 heard in support of their objections or amendments as they 
 arise ; but clauses may be postponed and considered at a 
 later period in the proceedings, if the committee think fit. 
 When all the clauses of the bill have been agreed on, new 
 clauses may be offered either by members of the committee 
 or by the parties ; but the committee cannot admit clauses 
 or amendments which are not within the order of leave, or 
 ■which are not authorized by a previous compliance with the 
 standing orders, (o) 
 
 3rdly. Course of proceedings in case of competing lines. 
 Upon this subject it is impossible to lay down any general 
 rule, as each committee modified its practice to suit the con- 
 venience of the parties, or the particular circumstances of the 
 case. In the main, however, the committees would appear 
 to have followed the course marked out in the suggestions 
 for the consideration of the select committees, though with 
 some variations. 
 
 The following was the suggestion relating to this sub- 
 ject : — 
 
 8. That in the cases of bills or projects for lines of rail- 
 way competing inter se, the following course is proposed to 
 be adopted : — 
 
 Suppose a case of four competing bills or projects : 
 
 No. 1. The counsel for the promoters opens the case by 
 a statement of facts merely, and then produces evidence. 
 
 (to) So held in Group (V), Great Grimsby and Sheffield 
 Railway. 
 
 (n Ante, p. ccxxx. 
 
 (o) May on Pari. 425, 426.
 
 ccxcvi Appendix. 
 
 Nos. 2, 3, 4. Landowners and other opponents tLen 
 cross-examine. 
 
 No. 1. Re-examines. 
 
 Nos. 2, 3, and 4. Landowners and other opponents then 
 offer consecutively positive evidence in opposition to No. 1, 
 on the merits of his case. 
 
 No. ]. Cross-examines. 
 
 Nos. 2, 3, and 4. Landowners and other opponents then 
 re-examine. 
 
 Same process with 2, 3, and 4, in rotation, and 4, 3, 2, 
 and 1, reply. 
 
 Suppose, accordingly, a case where there were three com- 
 peting lines, Nos. 1, 2 and 3. First of all, the counsel for 
 No. 1 stated his case, and then proceeded to call evidence, 
 blending, to a certain extent, the evidence in support of his 
 own case and that in opposition to the competing lines ; the 
 counsel for the landowners, &c. opposing No. 1 and for 
 Nos. 2 and 3 having the right of(p) cross-examining all 
 witnesses so called by No. 1, and the counsel for No. 1 of 
 re-examining them. At the close of No. I's case, the land- 
 owners, &c. opposing No. 1 were next heard, the counsel 
 for each landowner, &c. having the option of making his 
 speech either at the opening or close of his case, but not 
 at both. 
 
 Li the case, however, of the Wakefield, Pontefract and 
 Goole Railway committee on group (W), where an oppos- 
 ing landowner had set up a case of an independent line, in 
 answer to which the promoters of the bill adduced fresh 
 evidence, the counsel for the landowner was allowed the 
 right of reply to the additional portion of evidence adduced 
 by the promoters of the bill, {q) 
 
 No. 2 then went into his case, blending, as No. 1 had 
 done before, both his (No. 2's) evidence in support of his 
 own line, and that in opposition to the other competing 
 lines. In some cases the counsel for No. 2 was not allowed 
 more than one speech in favour of his own line, which he 
 bad the option of making either at the opening or close of 
 his own case, or at the close of the case of No. 3. 
 
 At the close of the case of No. 2, the landowners, &c. 
 opposing that scheme were heard in like manner and under 
 like regulations as in the case of No. 1 ; then No. 1 was 
 allowed to adduce rebutting evidence in answer to the case 
 
 (p) As to the right of cross-examination, see ante, p. ccxxi. 
 (g) See Supp. to Votes, 1462.
 
 Parliavientary Practice. ccxcvii 
 
 of No. 2, supposing, that is to say, that the latter had opened 
 matter not previously opened by No. 1, which the latter 
 might again meet, under similar restrictions, by the produc- 
 tion of additional evidence. 
 
 This closed the case of No. 2, when the case of No. 3 was 
 heard in the same order; Nos. 1 and 2 at the close of the 
 case of the landowners, &c. opposing No. 3, (where new 
 matter had been opened by No. 3,) being allowed to ad- 
 duce rebutting evidence to meet the case set up by No. 3, 
 in answer to which the latter, under like restrictions, might 
 adduce fresh evidence. 
 
 At the close of the case of No. 3 the counsel for Nos. 3 
 and 2 respectively proceeded to sum up on behalf of these 
 schemes against their antagonists, and then No. 1 had the 
 general right of reply, and the committee then decided on 
 the different preambles. If all were negatived, this of course 
 terminated the proceedings; if not, the committee proceeded 
 to deal with the successful bill (for in general more than 
 one of such lines could not of course receive the sanction of 
 the committee) in the same manner, as has been just shown, 
 they do with an opposed bill, (r) 
 
 The above rules of practice, as has before been remarked, 
 must be understood as subject to sundry qualifications and 
 exceptions, and this not simply in their minuter details, but 
 even in regard of their more general features. For in- 
 stance, instead of blending in one their case in chief and 
 that in opposition, a competing line would sometimes keep 
 them distinct, where the circumstances of the case required 
 it. Thus, in the committee on group (B), the Leeds and 
 West Riding line, which was a competing line with the 
 Huddersfield and Manchester in regard of a small portion 
 of their line, first of all went into their evidence in opposi- 
 tion to the latter line, and then into evidence affirmative of 
 the line proposed by themselves, between Cooper's Bridge 
 and Huddersfield, being the portion of their scheme com- 
 peting with the Huddersfield and Mancliester, and last of 
 all opened their case generally against the otiier competing 
 lines. 
 
 So likewise a committee sometimes would hear the com- 
 peting lines throughout before entering on the cases of the 
 individual opponents of any of such lines. 
 
 Or again, instead of suspending their decision till they 
 had heard the entire case of the various competing lines, 
 
 ()•) See ante, p. ccxciv. 
 
 N N 5
 
 ccxcviii Appendix. 
 
 they would decide on the preamble of the first bill brought 
 before them immediatel}' at the close of the case of such bill. 
 The committee would not, in general, on the application 
 of a competing line, interfere with the manner in which 
 counsel chose to shape their case, but left it to their own 
 discretion, (s) 
 
 12. Report. 
 
 When the committee have gone through all the clauses 
 and amendments, and finally settled them, they proceed 
 next to draw up their report. In this report the subjects 
 to which their attention is directed by the standing orders 
 must be pai-ticularly noticed. (^) 
 
 Sometimes, as in the case of the Brighton competing 
 lines, the committee, by leave or instruction of the house, 
 report specially. 
 
 A certain time is generally limited for the making of the 
 report, but it may be extended by leave of the house. 
 
 The report being made out, the committee clerk delivers 
 into the Private Bill Office a printed copy of the bill, with 
 the written amendments made by the committee, and with 
 every clause added by the committee regularly marked in 
 those parts of the bill in which they are to be inserted. (?/) 
 
 In conformity with this copy, the bill as amended must 
 then be printed at the expense of the parties, unless the 
 committee report the amendments to be merely verbal or 
 literal ( r) 
 
 By the Speaker's order, two copies of the amended printed 
 bill must be delivered at the Private Bill Office for the use 
 of the Board of Trade. ( ;/) 
 
 One cletir day's notice in writing must be given by the 
 agent for the bill at the Private Bill Office of the day pro- 
 posed for the report, {z) Upon the day so fixed the report 
 is made to the house by the chairman of the committee, 
 and is ordered to lie upon the table, (a) The minutes of 
 the committee must be brought up and laid on the table, 
 
 (s) See ante, p. ccxix. 
 (f) See post, p. cccix, et seq. 
 («) C. S. O. 140. 
 (i) C.S. 0. 120. 
 
 (y) Ridd. Pari. Pract. 103. In practice this is not generally 
 done, unless required, 
 (s) C. S. O. 139. 
 (a) C. S. 0. 118.
 
 Parliamentary Practice. ccxcix 
 
 with the report. (6) If it is intended to bring up any 
 clause, or propose any amendment on the report, notice 
 must be given thereof in the Private Bill Office on the day 
 previous, (c) Any such clause or amendment is referred 
 to the Committee on Standing Orders, {d) Every such 
 clause is required to be printed, and when any clause is 
 proposed to be amended it must be printed in extenso, with 
 every addition or substitution in different type, and the 
 omissions therefrom included in brackets, (e) 
 
 It is the duty of the committee to report whether the 
 proposed clauses or amendments are of such a nature as 
 ought not to be adopted without recommitting the bill, or 
 may be entertained by the house without recurring to that 
 proceeding, or ought not in either case to be adopted by 
 the house, {f) 
 
 When thus refened, no further proceeding can be tal<en 
 in regard thereof until the report of the committee has been 
 brought up. (g) 
 
 When bills are recommitted they are referred to the for- 
 mer committee, and no member can then sit unless he shall 
 have been duly qualified to serve upon the original com- 
 mittee on the bill. (A) 
 
 The committee cannot sit unless the agent has given 
 three clear days' notice in writmg at the Private Bill Office 
 of the day and hour appointed for their meeting ; (i) and a 
 filled up bill as proposed to be submitted to the committee 
 on recommittal must be deposited in the Private Bill 
 Office one clear day before the meeting of the committee 
 thereon, {k) 
 
 Unless the bill be recommitted by the house, with ex- 
 press reference to particular provisions only, the whole of it 
 is open to reconsideration. (/«) 
 
 When amendments are made by the house on the report, 
 they are entered by one of the clerks in the Private Bill 
 OSice upon the printed copy, as amended by tiic commit- 
 tee. The copy so amended is then signed by the clerk and 
 preserved in the office. (/) 
 
 (fc)C.S. 0.83. (.)C.S. 0.122. 
 
 (c) C. S. O. 141. (/>) May on Pari. 432. 
 
 (d)C.S. 0.121. (OC.S. 0.135. 
 
 (e) Ibid. (^) ^- S- O. 136. 
 
 (/)C.S.0.48. (OC.S. 0.143.
 
 ccc Appendix. 
 
 13. Consideration of Report. 
 
 Prelimimiry steps. — In the interim between the report 
 being laid upon the table and taken into consideration, a 
 breviate of the amendments made by the committee is pre- 
 pared by the Speaker's coimsel, and, when printed, sub- 
 mitted to the chairman of the Committee of Ways and 
 Means, and laid upon the table of the house at least the 
 day previous to the consideration of the report. (72) 
 
 By the Speaker's order, two copies of the amended printed 
 breviate must be delivered at the Private Bill Office for the 
 use of the Board of Trade, and one copy of the amended 
 breviate must be delivered at the Public Bill Office. And 
 three clear days, at least, before the consideration of the 
 report, copies of the amended printed bill must be delivered 
 to the doorkeepers for the use of the members ; (o) and 
 the agent, when he gives notice at the Private Bill Office of 
 the day for the consideration of the report, must produce 
 a certificate from the doorkeeper of the delivery of copies 
 of the amended printed bill on the proper day. (q) 
 
 The agent for the bill must give one day's clear notice in 
 writing at the Private Bill Office of the day proposed for 
 the consideration of the repoi-t, when laid upon the table, (r) 
 Whatever further amendment, &'c.(s) is now proposed is 
 subject to the like rules, &c., and similarly dealt with, as 
 ■where it is offered upon the report, (t) 
 
 Reports on railway bills are considered eveiy Tuesday 
 and Thursday afternoon on the meeting of the house. (I) 
 
 14. Third Reading. 
 
 When the report, &c. has been agreed to, the bill is 
 ordered to be ingrossed, and the house will not read it a 
 third time until it is certified that the ingrossment thereof 
 has been examined, and agrees with the bill as amended 
 in committee, and on consideration of the report, (u) 
 
 One clear day's notice in writing must be given by the 
 agent for the bill at the Private Bill Office of the day pro- 
 posed for the third reading, and this must not be until the 
 bill has been reported, or the report thereof considered. (.r) 
 
 (n) C. S. O. 119. (0 See ante, p. ccxcix. 
 
 (0) C. S. O. 120. (0 C. S. O. 123. 
 
 (9) May on Pari. 431. (u) S. O. 145. 
 
 (r) S. O. 139. (x) S. 0.142. 
 (s) S. O. 141.
 
 Parliamentary Practice. ccci 
 
 On the third reading clauses may be offered and amend- 
 ments proposed, subject to the like rules and regulations as 
 on the report or the further consideration of the report, 
 save that at this stage the bill cainiot be recommitted, but the 
 clauses, &c. are simply referred to the standing orders com- 
 mittee, (.r) 
 
 The bill being read a third time and passed, this is taken 
 to be a final approval by the house of the entire bill, pro- 
 visions and amendments. 
 
 Section IV. 
 
 PROCEEDINGS IN THE HOUSE OP LORDS, (y) 
 
 1. General Conduct of Business. 
 
 2. Introduction of Bill, &c. 
 
 3. Committee on Standing Orders. 
 
 4. Second Reading and Commitment. 
 
 5. Committee on Bill. 
 
 6. Report, &c. 
 
 7. Third Reading. 
 
 8. Proceedings in Commons in regard of Lords' 
 
 Amendments. 
 
 1 . General conduct of business. All proceedings in the 
 House of Lords with respect to private bills are entered in 
 the minutes of the house, kept in the office of tlie clerk of 
 the parliaments, which minutes are open for inspection, (z) 
 
 2. Introduction of bill, 4"f. Upon the bill being brought 
 up from the House of Commons it is read a first time. 
 After this has been done, and before any further proceed- 
 ings thereupon, the house requires that there be deposited in 
 the office of the clerk of the parliaments a statement of the 
 length and breadth of the space wliich is intended or sought 
 to be taken for the proposed works, and to give up which 
 the consent of the owners of tlie land lias not been obtained, 
 together with the names of sucii owners, and the heights 
 above the surface of all proposed works on the ground of 
 each such owner ; and also that a return shall be presented 
 at the same time of the names of the owners or occupiers 
 of any houses situated within 300 yards of the proposed 
 works, who shall have, before the 31st of December pre- 
 
 (i) See ante, p. ccxcix. 
 
 \y) See post, Sect. IX. as to bills commencing in Lords. 
 
 (z) Ridd. Pari. Pract p. 141.
 
 cccii Appendix. 
 
 ceding the introduction of the bill into parliament, deposited 
 written objections to the said railway with the public officer 
 appointed to receive the plans of the said railway within 
 the parish or township in which their property is situate ; 
 or if the railway shall not be proposed to be carried through 
 that parish or township, in the one through which the rail- 
 way is to pass, in the manner objected to by the above- 
 mentioned parties, (z) 
 
 These requisites having been complied with, of which 
 their lordships are made acquainted by the clerk of the 
 parliaments, the bill is referred to the committee on stand- 
 ing orders. 
 
 3. Committee on standing orders. At the commence- 
 ment of every session of parliament a standing order 
 committee is appointed, consisting of forty lords, besides 
 the chairman of the committees of the House of Lords, 
 who is always chairman of such standing order committee. 
 
 Quorum. Three of the lords so appointed, including the 
 chairman, are a quorum, (a) 
 
 Railway bills are referred to this committee previous to 
 the second reading, for proof of compliance with the stand- 
 ing orders; (6) and three days' clear notice must be given 
 of the meeting of the committee, (c) 
 
 Parties maif be heard upon petition, provided the matter 
 complained of be specifically stated. Any parties are at 
 liberty to appear, and to be heard by themselves, their 
 agents and witnesses, upon any petition which may be re- 
 ferred to the standing order committee complaining of a 
 non-compliance with the standing orders, provided the 
 matter complained of be specifically stated in such petition, 
 and that such petition be presented on or before the second 
 day after the introduction of the bill into the House, {d) 
 
 The petition, moreover, must have indorsed on its back 
 the name or short title of the bill to which it relates, (e) 
 
 Such petitions, it may be remarked, are generally referred 
 by the house to the standing orders committee together 
 with the bill. 
 
 Any proprietor of a company applying for powers to 
 
 (z) Minutes of Proceedings, H. L. 3 July, 1845, p. 722. 
 
 (a) L. S. O. 219,ss. 2 and 3. 
 
 (ft) L. S. 0.219,3.4. 
 
 (c) lb. s. 7. 
 
 {d) L. S. O. 219, s. 5. 
 
 (e) Resolution of Lords of 12th June, 1845.
 
 Parliamentary Practice. ccciii 
 
 execute works other than those for which it was originally 
 established by parliament, (supposing, that is to s;iy, that he 
 dissented at the meeting called for such purpose under the 
 standing orders of the house,) will be permitted, on petition- 
 ing the house, to be heard by the committee on standing 
 orders touching the compliance with those orders. ( /') 
 
 The committee require proof that all the particulars di- 
 rected by the standing orders to be attended to previous to 
 application to parliament, or to the introduction of the bill 
 into the house, have been observed, (g) 
 
 The committee are to report whether the standing orders 
 have been complied with, and if not, then the grounds of 
 their decision, and any special circumstances connected 
 with the case, and also their opinion as to the propriety of 
 dispensing with any of the standing orders in such case. (A) 
 
 If the committee report that the standing orders have 
 been complied with, or that in certain instances (stating 
 such specifically in their report) there has been a non-com- 
 pliance on the part of the promoters, but the opinion of the 
 committee is that in such instances the standing orders 
 ought to be dispensed with, the bill is ordered to lie on the 
 table, and leave given to proceed therewith. 
 
 4. Second reading and commitment. The next step is the 
 second reading, which may take place the day after the 
 report. Prior however to this, printed copies of the bill 
 must have been left with the clerk of tlie parliaments for 
 the perusal of the Lords. («') 
 
 Before the second reading also, copies of the subscription 
 contract, with the names of subscribers, &c. and amount of 
 deposit, or copies of the declaration and estimate, as tlie case 
 may be, must be printed at the expense of the promoters of 
 the bill, and delivered at the office of the clerk of the par- 
 liament for the use of the house. (A") 
 
 When the bill has been read a second time here, as in 
 the Commons, the principle is taken as aflirmcd, and the 
 bill is immediately committed. (/) 
 
 5. Committee on bill.— {\.) On unopposed bill. Unop- 
 posed bills are referred to open committees, presided over 
 by the chairman of the Lords' Committee, with whom 
 practically rests the conduct and management. He is as- 
 sisted in his duties by a counsel attached to his office, wiio 
 
 ( f) L. S. O. 234, s. 2. (i) L. S O. 96. 
 
 (i) See supra. Sect. L (k) L. S. O. 224, s. 6. 
 
 (I) L. S. O. 219, s. 6. (/) May on Pari. |..439.
 
 ccciv Appendix. 
 
 examines the provisions of the bill, and particularly indi- 
 cates any variance with the standing orders or general laws 
 of the land. The chairman may report his opinion to the 
 house that an unopposed bill should be treated as opposed, 
 and then it will be referred to a different committee, as if it 
 had been treated as an opposed bill in the first instance. {I) 
 
 (2.) On opposed bill. Every opposed bill is referred to 
 a select committee of five lords, who choose their own 
 chairman. (/) The house itself appoints the time for the 
 first meeting, (w) 
 
 Such committee, it may be remarked, are not to be named 
 to the house on the same day on which the bill is read a 
 second time, (n) 
 
 The duties and proceedings (o) of the committee on the 
 bill are very similar to those of corresponding committees in 
 the House of Commons. The bill is gone through clause 
 by clause, and is reported with the amendments to the 
 house. There are, however, one or two respects in which 
 the practice of the Lords differs from that of the Commons. 
 One is, that before the room has been cleared for the pur- 
 pose of deliberating upon the preamble, the committee re- 
 quire parties to state at once the amendments, &'c. which 
 they propose to make in the clauses of the bill, and to pro- 
 duce their evidence in support of them. Another is, that 
 witnesses are examined on oath, previously administered at 
 the bar of the house, (p) 
 
 It is the duty of the committee to see that the provisions 
 required by the standing orders, and which correspond, 
 to a great extent, with those above adverted to as re- 
 quired in the Commons, {q) are inserted in the bill, (r) 
 
 The committee on every opposed railway bill are also di- 
 rected to inquire into and report on the various matters 
 pointed out by the standing orders, (s) But where there is 
 no opposition, or it is withdrawn, or the adverse parties do 
 not appear, the committee have a discretion to determine 
 how far it may be necessary to inquire into these particu- 
 lars. (^) 
 
 (Z) May on Pari. p. 439. 
 
 (m) lb. 440. 
 
 (n) L. S. O. 219, s. 16. 
 
 (o) As to petition against bill on merits see Addenda. 
 
 (p) May on Pari. 440. 
 
 (q) See supra, p. cclxiv. 
 
 (r) L. S. O. 228, 233, ss. 4 and 5, ante, p. cclxix. 
 
 (s) See post, p. cccix ; L. S. O. 233, 9. 1. 
 
 (0 L. S. O. 233, s. 3. 
 
 J
 
 Parliamentary Practice. cccv 
 
 Except in those cases, the house will not proceed with 
 the further consideration of the report until it has received 
 from the committee specific replies in answer to each of the 
 questions embodied in those particulars, (m) 
 
 The committee are not to examine into the compliance 
 with^ the standing orders, the compliance with which is 
 required to be proved before the standing orders commit- 
 tee, (.rj 
 
 6. Report, Sj-c. The bill having passed through the com- 
 mittee is next to be reported. What particulars in cases of 
 opposed bills the report must embody has been already 
 considered. 
 
 When railway bills have been opposed in the committee 
 on the bill, the further consideration of the report will not, 
 as we have seen, be proceeded with, until the house has re- 
 ceived from the committee specific replies in answer to 
 each of the questions on which they are directed specially to 
 report. (3^) 
 
 7. Third reading. After it is reported, the bill is read a 
 third time. But this will not be done unless the provisions 
 required by the standing orders have been inserted therein. 
 The standing orders further require that a copy of the bill 
 as amended in com.mittee be deposited at the Board of 
 Trade three days before the same shall be read a third 
 time, {z) 
 
 Also every opposed railway bill into which amendments 
 have been introduced in connnittee, must be reprinted as 
 amended before the third reading, unless the chairman re- 
 port it to be unnecessary. («) 
 
 8. Proceedings in C'innnons in regard to Lords' amend- 
 ments. After the bill is read a third time and passed by the 
 lords, still, should the Lords have introduced any amend- 
 ments therein in its passage through their house, it must 
 be returned to the Commons, in order to such amendments 
 being there taken into consideration. In such case notice 
 must be given in the Private Bill Office on the previous 
 day. (6) And no such notice can be given until the bill 
 has been received from the Lords. ^c) If the Lords' amend- 
 
 (m) L. S. O. 233, s. 2. 
 
 (x) L. S. 0.219,8.8. 
 
 (y) L. S, O. 233, s. 2. 
 
 (i) L. S. O. 234, s. 4, as amended. See Addenda. 
 
 (rt) L. S. O. 234. s. 1. 
 
 (ft) C. S. O. 146. 
 
 (c) Speaker's Order, 10th May, 1843 ; May on Pari. p. 454.
 
 cccvi Appendix. 
 
 meuts are agreed to, they are required to be entered by one 
 of the clerks in the Private Bill Office upon the printed 
 copy of the bill, as amended in the committee, and there 
 preserved, (rf) 
 
 If the amendments are not agreed to, the bill is lost, 
 unless the other house consent to waive them. Or the Com- 
 mons may agree to the amendments with amendments, to 
 which the upper house again may agree or add others, and 
 so on till both houses are agreed, when the bill finally re- 
 ceives the royal assent. 
 
 Section V. 
 
 OF THE EVIDENCE IN SUPPORT OF A PRO- 
 JECTED RAILWAY. 
 
 1. Of Evidence of Compliance with the Standing Orders. 
 
 2. Of Evidence in Support of the Bill. 
 
 1. The first head again subdivides itself into two, ac- 
 cording to the tribunal before which it is to be adduced, 
 including the first, the necessary evidence before the sub- 
 committee on petitions in the Commons ; the second, that 
 before the standing orders committee in the House of Lords. 
 
 The principal points which require to be proved before a 
 subcommittee on a petition are those pointed out by the 
 standing orders. They are mainly reducible to the follow- 
 ing heads, as they relate, 1st, to the notices ; 2nd, to the 
 plans and sections; 3rd, to the applications to owners, &c. ; 
 4th, to the estimate and subscription contract ; 5th, to the 
 deposits on the subscriptions ; and last, to the deposit of a 
 copy of a bill annexed to a petition, &c. at the Board of 
 Trade. 
 
 1st. As to the notices. The due insertion of the notices 
 in the Gazette and newspapers must be established by the 
 production of the Gazette and newspapers, and either the 
 party producing them, or some one else called for the pur- 
 pose, must be able to speak to such notices being duplicates, 
 the nature of their contents, &c. 
 
 2nd. Of the plans, sections, ^-c. — To prove the con-ect- 
 ness of the plans, sections, &c., the company's engineer or 
 surveyor must be called, who must be prepared to say they 
 are on the proper scale, &c ; and the same part)', or some 
 one else who has examined them, should be prepared to 
 
 (d) C.S. 0. 143.
 
 Parliamentary Practice. cccvii 
 
 prove the accuracy of all copies of such plans, &c. The 
 deposit of the plans, &c. with the clerk of the peace, Sec, 
 must be shown, as also that the counties, &c. in which such 
 deposits have been made, are all the counties, &c. to which 
 the bill relates. That the book of reference contains the 
 names of all the owners, &c., must be proved by the party 
 who compiled it ; and either that party, or some one else, 
 must be prepared to speak to the correctness of the copies 
 deposited with the Board of Trade, &c. 
 
 The party depositing the plans, &c., with the clerk of the 
 peace, &c., should see that he or his deputy makes the ne- 
 cessary memorial thereupon, denoting the time of their 
 being lodged at his office. 
 
 In the case of Scotch and Irish railway bills, the delivery 
 of the plans may be proved by the certified affidavit of the 
 party by whom they were delivered. 
 
 3rd. As to tlie application to owners, ^x. To prove the 
 making of the requisite applications, the person or persons 
 by whom they were made must be called. In the absence 
 of other proof, the production of a written acknowledgment 
 by the party applied to will be sufficient. That the lists of 
 owners, &c. thus .applied to, embrace all the owners, &c. 
 must likewise be shown by some one, generall}' the party 
 compiling the book of reference. The correctness of the 
 lists of assents, &c., must be established by calling the party 
 by whom they were made out. 
 
 Notice of a bill for the relinquishment of any portion of 
 a work authorized by some prior act must be proved by 
 putting in a copy, and proving its correctness, and the ser- 
 vice of the original. 
 
 4ih. As to the estimate and subscription contract. The 
 making, &c., of the estimate must be proved by putting in 
 the document and calling the party who made it, or some 
 one who saw him sign it, to speak to the fact. To esta- 
 blish the subscription contract, and show that it satisfies all 
 the requisites of the standing orders, the contract must be 
 produced by the solicitor for the bill, or some one else who 
 can speak to its contents, &c.; and the witness or witnesses 
 attesting the execution thereof by the subscribers must be 
 called to prove the same. 
 
 The printing and delivery of copies of the subscription 
 contract, &c. at the Vote Office may be proved by the par- 
 liamentary agent or some one from his office. 
 
 5th. Of the deposit. The payment thereof into tlu; proper 
 court must be proved by the production of an office^ copy of 
 the certificate of the accountant-general, &c., and the parly
 
 cccviii Appendix. 
 
 producing the document should be prepared to speak to the 
 payment being prior to the presentation of the petition. 
 
 In the case of Irish and Scotch bills, compHance with the 
 standing orders may be shown by affidavits certified by the 
 proper authorities, unless the committee require further evi- 
 dence.— C. S. O. 11 and 12. 
 
 Lastly, the deposit of the bill, with a petition annexed, &c. 
 at the Board of Trade, &c, in due time, may be proved by 
 the parliamentary agent or some one from his office. 
 
 2. Of the proof of compliance with the standing orders 
 requisite before Lords' standing order committee. And here 
 those points only will be noticed in whicli by reason of the 
 differences between the standing oi'ders of the two houses, 
 the requisite evidence is also to the like extent necessarily 
 different. They may be classed under the following heads, 
 as they relate, 1st, to the notices ; 2nd, to the plans, sections, 
 &c. ; 3rd, to the applications to owners; 4th, to the signa- 
 ture of parties appearing in the bill as directors; and oth, 
 as to proceedings in the case of a bill to empower an exist- 
 ing company to execute any work other than that for which 
 it was originally established. 
 
 \st. As to the notices. The affixing of the necessary 
 notices to the doors of sessions houses, or in Scotland on 
 churches, must be proved by the testimony of the parties 
 by w'hom they were severally affixed. As to the evidence 
 of such notices being duplicates, &c. see ante, p. cccvi. 
 
 Indly. As to plans, sertio7}s, S^t, The delivery of copies 
 of so much of the standing orders of the house as relates to 
 the deposit of plans, &c., with the clerk of the peace, &c., 
 must be proved by the person who left such copies. 
 
 The deposit of copies of the plans, sections, and books of 
 reference in the office of the clerk of the parliament is to be 
 proved similarly to that in the Private Bill Office under the 
 coiTesponding order of the Commons. The evidence as to the 
 plans and sections of alterations made subsequently to the 
 introduction of the bill into parliament and the deposit of 
 the same at the office of the clerk of the peace, &c., is the 
 same as in the case of the original plans, &c. 
 
 3rdli/, In the Lords, as a general rule, it is not necessary 
 to prove the services of the notices by the witnesses, (f/) but 
 the evidence of the solicitor that he gave instructions for all 
 the notices to be served, &c., and that he believes they were 
 served, is sufficient. 
 
 Athly. To prove the signature of the printed copy of the 
 bill, &c., by parties whose names are introduced in such bill 
 
 (d) See Second Report of Lords' Committee, post, Sect. IX.
 
 Parliamentary Practice. cccix 
 
 as directors, &c. the printed copy of the bill must be put in, 
 bearing the signatures of the parties in question, and then 
 the party who witnessed their signatures must be called to 
 prove them, or else some one acquainted with those parties' 
 handwriting; the party must also be prepared to speak to 
 the identity of the parties signing witlj those named in the 
 bill, and that they actually fill the offices assigned to them ; 
 or, in lieu of this, it may be shown that all the parties 
 named in the bill as directors, &c. signed the petition to 
 bring in the bill. 
 
 Lastly, as to the proof in cases of bills to empower an 
 existing company to execute any work other than that for 
 which it was originally established. This must go to es- 
 tablish the four following points: 1st, that the meeting of 
 the proprietors was duly advertized in the newspapers for the 
 purpose of considering the draft of such bill; 2nd, the time 
 of holding the meeting ; 3rd, that the draft of the proposed 
 bill was submitted to the meeting so convened ; and 4th, 
 that it was approved of by at least three-fifths of those pre- 
 sent. To establish these points the pi-oper course is to call 
 the solicitor or seci'etary, who must produce the newspapers 
 in which the intended meeting was advertized of the com- 
 pany, and the draft submltttju to the meeting, and prove it 
 to be the draft so submitted, &c. 
 
 2. Of the Evidence to be adduced before the Commit- 
 tee ON THE Bill in Support thereof. 
 
 The nature of this evidence may be mainly collected 
 from a consideration of the particulars as to which the 
 standing orders require the conunittee to inquire and report 
 specially, and which embrace a very large portion of the 
 evidence necessary to be adduced in support of the preamble. 
 The main particulars alluded to are as follows : (e) 
 1 , Capital and loans. The proposed capital of the com- 
 
 (e) By recent resolutions of the two houses so much of the 
 standing orders (viz. the 7th, 8lh and 9th paragraplisofthe a7lh 
 order of the Commons, and paragraplis 2, 3 and 4 of 1st sect, of 
 233rd order of Lords) as required all railway committees to insti- 
 tute inquiries as to the existing traffic between the termini of the 
 proposed railway and as to the anticipated traffic on such rail- 
 way, &c. has been rescinded. Consequently, detailed evidence 
 of traffic, as a general rule, need no lonj.Tur be adduced by the 
 promoters of a bill before the committee, liy a still subse<[ucat 
 resolution of the House of Commons, it may be remarked, the 
 20th paragraph of the above order of that House has also been 
 rescinded. See post, Sect. IX.
 
 cccx Appendix. 
 
 pany formed for the execution of the project, and the 
 amount of any loans which they may be empowered to 
 raise by the bill. 
 
 2. Shares and deposits. The amount of shares subscribed 
 for, and the deposits paid thereon. 
 
 3. Names ^c. of directors. The names and places of 
 residence of the dii'ectors or provisional committee, with the 
 amount of shares taken by each. 
 
 4. Local shareholders. The number of shareholders who 
 may be considered as having a local interest in the line, and 
 the amount of capital subscribed for by them. 
 
 5. Other parties, 4c. The number of other parties and 
 the capital taken by them. 
 
 6. Subscribers for 2000^. and upwards. The number of 
 shareholders subscribing for 2000/. and upwards, with their 
 names and residences, and the amount for which they have 
 subscribed. 
 
 7. Whether railwaij be a complete line, or part of a more 
 extended plan. Whether the proposed railway be a com- 
 plete and integral line between the termini specified, or a 
 part of a more extended plan now in contemplation, and 
 likely to be hereafter submitted to parliament, and to what 
 extent the calculations of remuneration depend on such con- 
 templated extension of the line. 
 
 8. Whether report from Board of Trade has been referred 
 to the committee, 4r. Whether any report from the Board 
 of Trade in regard to the bill, or the objects thereby pro- 
 posed to be authorized, has been referred by the house to 
 the committee, and if so, whether any and what recommen- 
 dations contained in such report have been adopted by the 
 committee, and whether any and what recommendations 
 contained in such report have been rejected. 
 
 9. Assistant engines. What planes on the railway are 
 proposed to be worked, either by assistant engines, stationary 
 or locomotive, with the respective lengths and inchnations of 
 such planes. 
 
 10. Engineering difficulties. Any peculiar engineering 
 difficulties in the proposed hne, and the manner in which 
 it is intended they should be overcome. 
 
 11. Ventilation of tunnels. The length, breadth and 
 height and means of ventilation of an}- proposed tunnels, 
 and whether the strata through which they are to pass are 
 favourable or otherwise. 
 
 12. Gradients and cu?-ves. Whether in the lines pro- 
 posed, the gradients and curves are general!}' favourable or 
 otherwise, and the steepest gradient, exclusive of the in-
 
 Parliamentary Practice. cccxi 
 
 clined planes above referred to, and the smallest radius of a 
 curve. 
 
 13. Length of line. The length of the main line of the 
 proposed railway, and of its branches respectively. 
 
 14._ Whether passing any highwai/s on a level. Whether 
 it be intended that the railway should pass on a level any 
 turnpike road or highway, and if so, to call the particular 
 attention of the house to that circumstance. 
 
 15. Amount of estimates, and whether adequate. The 
 amount of the estimates of the cost or other expenses to be 
 incurred up to the time of the completion of the railway, 
 and whether they appear to be supported by evidence, aiid 
 to be fully adequate for the purpose. 
 
 IG. Annual expenses. The estimated charge of the an- 
 nual expenses of the railway when conipleted,"and how far 
 the calculations on which the charge is estimated have been 
 sufficiently proved. 
 
 17. Revenue in reference to annual charge. Whether 
 the calculations proved in evidence before the committee 
 have satisfactorily established that the revenue is liicely to 
 be sufficient to support the annual charges of the main- 
 tenance of the railway, and still allow profit to the pro- 
 jectors. (/) 
 
 18. Number of assents, dissents and neuters. The num- 
 ber of assents, dissents and neuters upon the line, and the 
 length and amount of property belonging to eacli class tra- 
 versed by the said railway, distinguishing owners from oc- 
 cupiers ; and in the case of any bill to vary the original 
 line, the above particulars with ret'erence to such parties 
 only as may be affected by the proposed deviation. 
 
 19. Engineers examined. The name of each engineer 
 examined in support of the bill, and of any examined in op- 
 position to it. 
 
 20. Allegations of petitions in opposition. The main al- 
 legations of every petition which may have been referred to 
 the committee in opposition to the preamble of tiie bill, or 
 to any of its clauses ; and whether tlie allegations iiave been 
 considered by the committee, and if not considered, the 
 cause of their not having been so. 
 
 Fitness in an engineering point of view, and any other cir- 
 cumstances. And the conmiittee shall also report generally 
 as to the fitness, in an engineering point of view, of tiie pro- 
 jected line of railway, and any circumstances which, in the 
 opinion of the committee, it is di'sirable tiie house slxmld be 
 informed of. H. C. 87; H. L. 233, s. 1. 
 
 (/) See ante, ii. (e), p. cecix.
 
 cccxii Appendix. 
 
 The different subject-matters of inquiry befoi'e a com- 
 mittee having been thus pointed out, it may be proper, in 
 the next place, to notice the evidence required to be adduced 
 bj' the promoters in regard of them and of the preamble 
 generally, and herein, 1st, of the evidence in chief; 2nd, of 
 rebutting evidence. 
 
 The foimer species of evidence would seem mainly re- 
 ducible to the three following heads : (1st) general evidence 
 of merits; (2nd) engineering evidence; and (3rd) formal 
 proofs relative to the proposed capital of the company, the 
 amount of loans which the bill empowers them to raise, the 
 amount of shares subscribed for, and the deposits paid 
 thereon, S:c. 
 
 Though, generally speaking, perhaps these different 
 classes of evidence follow one another in tiie above order, 
 yet it is a matter wholly resting in the discretion of the 
 promoters of the bill, and it is accordingly competent for 
 them in any given case to depart from it in favour of ano- 
 ther, that may promise to be either more convenient, or 
 better suited to the circumstances of their case. 
 
 To commence, however, with that which is generally 
 the (1st) taken by the promoters of bills, viz., the evi- 
 dence of general merits. The object of the promoters here 
 is, of course, to satisfy the committee of the expediency of 
 the measure in regard of the public interest, and of the ad- 
 vantages that are likely to result, both locally and to the 
 community at large, from its construction. For this pur- 
 pose they proceed to call persons of every possible grade and 
 denomination connected with the various districts through 
 which the railway is intended to pass, and who are conse- 
 quently competent to speak to the trade, manufactures, and 
 population of' such districts, the quantity and quality of their 
 produce, the state of the traffic, the inadequacy of the 
 existing means of conveyance and communication to answer 
 the wants of the inhabitants, and the like, (c) 
 
 One very important element of proof under this head is 
 to show what the degree of favour is that is entertained 
 towards the proposed railway by the inhabitants of the 
 towns and districts along the line. For this purpose the 
 committee will receive hearsay evidence of what has taken 
 place at any meetings held at the various places along the 
 line, and at which the objects of the promoters have been 
 discussed, {d) 
 
 (c) As to the evidence of the population on competing Hnes, 
 see ante, p. ccxxix, and suggestions of tliis session, Sect. X. 
 \d) Ridd. Pari. Pract. 158.
 
 Parliamentary Practice. cccxiii 
 
 Although the production of detailed traffic evidence, as a 
 general rule, has ceased to be necessary by reason of the 
 rescission of the portion of the standing orders just alluded 
 to, (see ante, p. cccix.) yet a certain amount of general evi- 
 dence in respect to the anticipated traffic on the line may 
 still, it is conceived, be necessary in some cases to substan- 
 tiate the preamble, and likewise in the Lords, to enable the 
 committee to report on the 17th resolution mentioned above. 
 
 The most satisfactory mode of proving such anticipated 
 traffic in general, (for to a certain extent, this must of course 
 depend on circumstances,) would seem to be, by giving proof 
 of the existing traffic, i. e. the number of public and private 
 conveyances ordinarily passing between the termini, the 
 tonnage, &c. of goods, &c. conveyed by water carriage, and 
 the like, and then showing what increase of traffic may fairly 
 be expected to follow the construction of the railway by reason 
 of the impulse given thereby to trade, the additional faci- 
 lities affijrded for travelling, and the like. To establish the 
 former of these points, the best evidence would be that of 
 persons either engaged in those branches of traffic, or who, 
 from personal inquiry and observation, &c. are possessed of 
 the requisite information ; on the latter, the production of 
 persons acquainted with the state of trade, agriculture, 
 manufactures, &c. throughout the districts proposed to be 
 traversed by the railway, and consequently competent to 
 give a fair judgment of the effects which the construction of 
 the railway is likely to produce on the trade, &c. of the 
 districts in question. 
 
 To this should be added evidence of the population within 
 certain distances of the proposed line, (e) 
 
 {2nd.) Of the engineering evidence. The principal evi- 
 dence on this part of the promoters' case is that of their 
 own engineer in chief, though it is in most cases requisite 
 for the promoters to be prei)ared to call other engineers, 
 surveyors, &c., in order to corroborate their own engineer's 
 testimony, and satisfy the committee of the accuracy of the 
 plans and estimates, and the correctness of the principles 
 on which the line before the committee has been laid out, 
 &c. This is more especially the case where any contro- 
 verted principle of engineering science is likely to be 
 brought in question, as, for instance, where two comi)etnig 
 lines have been referred to the same group, of wliich one 
 proposes to adopt the locomotive and the other the atnio- 
 
 (e) As to this, see ante, p. ccxxix. and the new suggeslionfl 
 of this session, post, sect. X.
 
 cccxiv Appendix. 
 
 spheric principle of traction ; or again, one is to be con- 
 structed on the broad, the other on the narrow gauge. 
 
 The evidence as to the nature of the works, &c. (see 9th, 
 10th, 11th, 12th and 13th resolutions), may be prepared 
 and handed in by the engineer in a tabular form. 
 
 The same of the estimates, (see 15th resolution,) which 
 may be classed under the following heads : costs of earth 
 work, of bridges and viaducts, of tunnels, of permanent 
 way, &c. 
 
 To prove the value of the land, &c. required for the pur- 
 poses of the undertaking, the proper evidence is that of the 
 surveyor by whom the valuation was made. He cannot, as 
 ■we have alreadj' had occasion to notice, be required to give 
 his estimate of any particular piece of ground, though he 
 may be asked generally as to the value per acre he has fixed 
 on land in a particular district or on any particular descrip- 
 tion of land. 
 
 Where it is desired by the promoters to obtain power to 
 cross any public highway on the level, which, it may be re- 
 marked, must be specified in the bill, the engineer must be 
 prepared with sufficient evidence to satisfy the committee of 
 the reasonableness of this departure fi-om the provisions of 
 the Railways Clauses Consolidation Act. {d) The nature 
 of this evidence must, of course, depend upon the circum- 
 stances of the particular case, as, for instance, that the levels 
 of the countT}' at the proposed point of crossing do not 
 admit of the construction of a bridge without occasioning a 
 greater degree of inconvenience than would result from a 
 level crossing, &:c. This evidence may also be given in 
 a tabular form, i. e. the bridges may be classed, and the 
 observations applicable to each written against them. 
 
 If the promoters seek to procure in their bill the in- 
 sertion of a clause authorizing the carrying a carriage road 
 over or under the i-ailway with steeper gradients than 
 what the standing orders (e) permit, (a clause, it may be 
 remarked, which the committee have no power to admit 
 without a recommendation to that effect from the Board of 
 Trade), it is necessary for the promoters, before going into 
 committee, to make application to the Board of Trade, and 
 satisfy them of the propriety and reasonableness of what 
 they propose to do. If the Board report in their favour, the 
 committee in general, it is conceived, would adopt the report 
 
 (d) See Act, s. 46, App. I., ante ; see also Resolution 14, 
 ante, p. cccxi. 
 
 (e) See ante, p. cclxv.
 
 Parliamentary Practice. cccxv 
 
 and pass the clause (/), but if they are not satisfied with the 
 report, it may be necessary to give before the committee evi- 
 dence of the reasons adduced before the Board of Trade in 
 support of the clause. 
 
 Though it is not likely that any reports on railways (see 
 8th resolution) will be made by the Board of Trade in the 
 present session unless they are called for, still, should any 
 be made, and should they contain any special recommend- 
 ation, evidence should be given as to the compliance with 
 such recommendation. 
 
 Where any reports of the Board of Trade, or other do- 
 cuments emanating from that department, have been, ac- 
 cording to the usual practice with regard to such documents, 
 referred by the house to the committee, such documents 
 are recognized by the committee in virtue of such reference, 
 and may accordingly be commented on by counsel, and 
 otherwise used without any further proof being required of 
 their authenticity, &c. 
 
 Where dociunents of the class in question are not before 
 the committee, not having been so referred, the course for 
 parties wishing to bring them before the committee is to 
 procure a member (generally one of the committee) to move 
 the house to refer them to the committee. 
 
 In some cases ihe works of the promoters may involve 
 an interference with the rights or interests of the public, as 
 for instance, where they contemplate crossing a navigable 
 river or harbour, running under an arsenal or fort, and 
 the like. In all such cases the promoters must satisfy 
 the committee that they have obtained the consent of 
 the public department (within whose province it ftills to su- 
 perintend the interests affected) to the proposed metbod of 
 dealing with those interests. The usual evidence for this 
 purpose consists of the letter or other document eml)odying 
 the consent of the proper officer or officers of tlie depart- 
 ment in question, which is put in by tlie promoters ; and then 
 some officer, clerk, cSrc. of the department is called to prove 
 that it is actually what on the face of it it purports to be. 
 Where evidence is produced on the other side impugning 
 the authenticity of the document in question, tliis may 
 make it necessary for tlie parties relying upon it in their 
 turn to give some further evidence in support of its authen- 
 ticity. . , , 
 
 If the promoters are not prepared with the ncccssarj' 
 
 (/) See case of Scottish Central Railway, Group (DD). 
 o o 2
 
 cccxvi Ai^pendix. 
 
 evidence of the consent when it is required by the com- 
 mittee, the latter will yet give time for its production, (g) 
 
 The committee will not, it seems, stop the investigation 
 of a scheme, even on the positive refusal of the department 
 whose consent is necessary to sanction some particular part 
 of that scheme, but will themselves communicate with the 
 department in question, (h) 
 
 Srd. The formal proof is generally furnished by the secre- 
 tary or solicitor of the company, who puts in the necessary 
 documents, such as the lists of assents, dissents and neuters, 
 &c. 
 
 The only difficulty that can be felt on this part of the case 
 is as to who may be considered as having a local interest 
 in the line or not. Shareholders resident in the neighbour- 
 hood may, of course, be considered to possess such interest, 
 as likewise traders and others whose course of business, &c. 
 would lead them to use the line beyond the world in ge- 
 neral. 
 
 2nd. Of rebutting evidence. If a line before the com- 
 mittee go into no evidence on a particular question, which 
 is afterwards opened by a rival line, the former may pro- 
 duce evidence to rebut the case made out by the rival line 
 on such question, but if the first line opens a particular ques- 
 tion, but does so imperfectly, they are not afterwards en- 
 titled to amend their case in this respect, as they ought to 
 have brought forward the whole of their evidence in the 
 first instance, (i) 
 
 In addition to the evidence brought forward by the pi'o- 
 moters or opponents of a railway bill to substantiate their 
 views and statements, the committee may, for their own 
 satisfaction, require witnesses to be examined on any ques- 
 tion that arises in the course of the proceedings which they 
 consider has not been sufficient!}' established or explained 
 by the endence adduced. And if a member of parliament 
 desii-e to give his evidence to the committee on any subject 
 connected with the measure under their consideration, he 
 may be called and examined by them with respect to such 
 subject, (/c) 
 
 (g) See ante, p. ccxliv. 
 
 (h) See ante, p. ccxlv. 
 
 (i) Ridd. Pari. Piact. 168. See the case of the London and 
 Brighton Railway, Group (IMiM), Supp, to Votes of Commons, 
 1845, p. 1542. 
 
 (k) See Ridd. Pari. Pract. ib.
 
 Parliamentary Practice. cccxvii 
 
 Section VI. 
 
 OF THE OPPOSITION TO A RAILWAY BILL, AND 
 THE EVIDENCE ADDUCIBLE IN SUPPORT 
 THEREOF. 
 
 1. Of the Locus Standi. 
 (1.) As regards Interest. 
 
 (1st.) Competing Lines. 
 (2ndly.) Landowners, &c. 
 (2.) As regards the petition. 
 
 (1st.) Time of Presentation. 
 (2ndly.) Requisites, &c. 
 
 2. Of the Grounds of Opposition, and the Evidence ad- 
 
 missible in Support thereof. 
 (1st.) As to the Character of the Line. 
 (2ndly.) Of the Character of the Evidence admissible 
 
 for the purpose of setting up a new Line. 
 
 1. Of the Locus Standi. 
 
 (1.) The parties entitled in regard of their interest to be 
 heard against a proposed bill are mainly divisible into two 
 classes, competing lines and landowners, &c., with whose 
 property the proposed line is calculated to interfere. 
 
 (1st.) Competing lines. What constitutes a competing 
 line is hardly susceptible of any exact legal definition. Lines 
 proposing to run between the same termini, or substantially 
 through the same line of country, would of course be such; 
 and generally any lines, it should seem, might be considered 
 to bear that character which were intended to accommodate 
 the same traffic, and which, consequently, must mutually 
 draw traffic from each other. Lines nn'glit be competing 
 inter se in regard of certain classes of traffic and not in 
 others, or again, in regard of one portion of the distance 
 they were intended to run, and not for anotlier. In such 
 case the sphere of their mutual opposition before the com- 
 mittee was narrowed proportionably. («) 
 
 (a) For instances of lines held to be competing or not, and 
 either wholly or partially, see proceedings of committee on 
 Group (D), where the Blackburn, Burnley, Accrington and 
 Colne Extension line was held not to be a competing line with 
 the Blackburn, Darwen and Bolton. See also proceedings of
 
 cccxvili Appendix. 
 
 Competing lines that were referred to the same committee 
 acquired their locus standi by virtue of that very reference. 
 Even where the promoters of any such Hne had failed be- 
 fore the standing orders committee, by reason of their not 
 having complied with some of the standing orders, they 
 might still be heard to oppose as a project, {d) 
 
 And the same where the preamble of a bill for a com- 
 peting line had been negatived by the committee on the 
 group of bills of which it formed one, on the ground of an 
 error in the section, which rendered the scheme impracticable 
 •without a greater deviation from the levels described in the 
 section, than what the stat. 8 Vict. c. 20, permitted, (e) But 
 wherever the projectors had not deposited their plans and 
 sections they were not permitted to be heard as a competing 
 line. Thus in the committee on group (FF) it was held 
 that the provisional directors and subscribers to the Cale- 
 donian Extension Railway could not be heard against the 
 Edinburgh and Hawick Railway bill, inasmuch as they had 
 not deposited any plans, &c., or presented any petition to 
 
 committee on Group (E), where the Northumberland, and New- 
 castle and North Shields (Tynemouth Extension) were held 
 competing lines. So likewise the committee on group ( DD) de- 
 cided that the Glasgow, Dumfries and Carlisle and the Edinburgh 
 and Northern Railway had not such a direct interest as entitled 
 them to oppose the preamble of the Scottish Centrjl Railway bill, 
 though the Edinburgh and Glasgow were allowed to be heard 
 against the Caledonian. So likewise it was decided by the 
 committee on group (KK) that the Liverpool. Ormskirk and 
 Preston was a competing line with the Rainforth and RufFord 
 branches of the Liverpool and Manchester Railway Company, 
 and with the Southport and Euxton. 
 
 And in the committee on group ( W) of railways, counsel for 
 the Wakefield, Pontefract and Goole Railway bill, applied to 
 be heard against the Doncaster and Goole Railway bill then 
 before the committee, if the latter company proposed to take any 
 of the traflSc from Wakefield, and contended that in that case 
 they were a competing line. JMr. Austin slated that they did 
 not intend to take any of the Wakefield traffic. The counsel 
 making the application then withdrew. 
 
 (d) See the case of the Direct Northern, ante, App. IL, p. 
 ccxx. A similar decision was come to by the committee on group 
 (K) of railways in the case of the Eastern Union and Norwich, 
 No. 2, and by the committee on group (U) in the case of the 
 Hull and Gainsborough. 
 
 (e) See the case of the Cambridge and Lincoln Railway, 
 ante, p. ccxxvi. et seq.
 
 Parliamentary Practice. cccxix 
 
 parliament. A similar decision was come to by the com- 
 mittee on group (SS) of railways, in the case of certain 
 parties who had petitioned against the Coventry and 
 Nuneaton line ; and also by the committee on group (O), 
 in the case of a rival company who had petitioned against 
 the Grand Junction Railway (Potteries branch) bill. ( /') 
 
 What a company so circumstanced could not do directly 
 they were not allowed to do indirectly. Where, therefore, 
 as was often the case, they procured a landowner to lend 
 them the use of his name, and under colour of that at- 
 tempted to prove their case against a rival line, the com- 
 mittee, if the connection between the parties could be proved 
 to their satisfaction, (and one main test of this was the fact 
 that all expenses of the opposition were to be borne by 
 the company,) would not allow the landowner to go into 
 evidence intended solely to prove the case of the provi- 
 sional company, (g) 
 
 So likewise a company that had abandoned a part of its 
 project was held afterwards to have no locus standi on any 
 question affecting only the part of the scheme so aban- 
 doned, {h) And the same of a company the preamble of 
 whose bill had been negatived on the merits, (i) as it could 
 no longer be supposed to exist. (J) 
 
 The decisions of the Lords as to what constituted com- 
 peting lines seem to have rested upon much the same prin- 
 ciples as those of the Commons, except that in the upper 
 house parties to entitle themselves to be heard as a com- 
 peting line against a bill must have presented a petition for 
 that purpose. 
 
 In general, though the rule was not without its excep- 
 tions (/c), select committees of the House of Lords during 
 
 (f) See further, Supp. to Votes, 1845, pp. 1177, 1250, 1.300. 
 
 (g) See case of petitioners against the Edinburgh and Hawick 
 Line, Supp. to Votes, p. 1244, 1245 ; and case of petitioners 
 against Edinburgh and Northern Line, ih. 1250. 
 
 (/^) See the case of the South-Easlern, ante, App. IL p. ccxlv. 
 (i) See the case of the North Kent, ante, ib. 
 
 C;) lb. 
 
 (k) In the case of the South-Eastern Railway and Deal Ex- 
 tension, before a select committee of Lords, opposition was 
 offered to the preamble of the bill by tlie promoters of a project 
 which appeared in Group (A) in the House of Commons as a 
 bill the preamble of which the committee of tiiat house decided 
 not to have been proved. The select committee decided that 
 the petitioners had no locus standi. So also in the case of the
 
 cccxx Appendix. 
 
 the last session would appear to have admitted to a locus 
 standi projects which had been thrown out by the House 
 of Commons either on the merits or on the standing orders 
 of that house. 
 
 A section of the shareholders of a company had no locus 
 standi to oppose a bill (group BB., Waterford and Kilkenny 
 Railway), (w) 
 
 A line that would otherwise have been heard in the 
 character of a competing line, might, by entering into an 
 agreement to that effect, deprive itself of such character, 
 and so be shut out from offering opposition to another, the 
 agreement being recognized by the committee. So held in 
 case of petition of Great Southern and Western Railway 
 against Waterford and Limerick, (w) 
 
 (2dly.) In general, owners or occM/?iers of lands, buildings, 
 &c. liable, &c. to be cut through or physicall}' injured by a 
 proposed railway, were held entitled to be heard in opposi- 
 tion to the bill for that purpose. But where property was 
 physically uninjured, there whatever the amount of damage 
 that the railway might be calculated in other respects to in- 
 flict on the owner, he had no locus standi to be heard be- 
 fore the committee. 
 
 As a general rule, those whose names appear in the 
 schedule of a bill would seem to have a right to be heard 
 
 Norwich and Brandon Railway (Diss and Dereham branches), 
 before a select committee of Lords, when opposition was offered 
 by the promoters of a project which had been thrown out in the 
 lower house on the standing orders, but had been allowed a /ocks 
 standi before a committee of that house, in consequence of the 
 practice therein followed of admitting an appearance as projects 
 for schemes similarly situated, the select committee decided that 
 the petitioners had no locus standi. So also in the case of the 
 Leeds and West Riding Railway, before a select committee of 
 Lords, (the Duke of Cleveland, chairman,) on counsel for some 
 landowners cross-examining a witness on a rival scheme, which 
 had been rejected by a committee of the House of Commons, the 
 select committee passed the following resolution : — 
 
 " That counsel in their cross-examination be instructed to 
 confine themselves to the demerits of the present bill, but not to 
 enter into the merits or demerits of any other scheme for which 
 no counsel appears." Ridd. Pari. Pract. pp. 207, 208. 
 
 (m) Ibid. p. 210. 
 
 (n) Supp. to Votes, 1845, p. 1496 ; but see Supp. to Votes, 
 1845, pp. 1527 and 1529, where committee refused to reco2;nize 
 the agreement of the engineers of the Dundalk and Enniskillen 
 and Newry and Enniskillen Railway Companies.
 
 Parliamentary Practice, cccxxi 
 
 against the preamble of such bill, and this whether their 
 property will be actually required for the purposes of the 
 proposed railway or not. Case of Midland Railway (Not- 
 tingham and Lincoln) before a select committee of Lords, (o) 
 The same was held in the case of the West Cornwall Rail- 
 way, group (N.) There a landowner whose name ap- 
 peared in the schedule petitioned against the preamble of 
 the bill. The bill being before the committee, the pro- 
 moters offered to deviate the line so as not to touch the pe- 
 titioner's property, and to strike his name out of the sche- 
 dule, and submitted that under such circumstances the pe- 
 titioner had no longer any locus standi before the committee. 
 The chairman, having consulted with the Speaker, inti- 
 mated that the Speaker was clearly of opinion that this did 
 not destroy the locus standi of the petitioner. 
 
 Under this same head must be classed the trustees of turn- 
 pike roads, commissioners of navigations, and other parties 
 interested in the pre-existing avenues of communication by 
 land or water, which the proposed line of railway was in- 
 tended to cross, &c. ; the owners, therefore, of a canal could 
 not be heard on a petition which simply stated as the ground 
 of complaint the intention of the railway company to dry up 
 another canal, and thereby consequentially injure them, {p') 
 
 A distinction, however, it should be remarked, has been 
 made between Scotch and English trustees in one respect, 
 viz. that the former have in some cases been admitted to 
 be heard, not merely for the protection of their roads, but 
 likewise to procure the insertion of clauses for their com- 
 pensation in case of any diminution of toll, consequent on 
 the construction of the railway. This distinction rested on 
 the ground that the trustees of Scotch roads ordinarily in- 
 curred a personal liability in regard of the road debts. 
 
 A further distinction, it may be proper here to remark, 
 has been drawn in some instances, between the case of land- 
 owners, and canal proprietors and others interested in the 
 existing modes of transit, the latter being held entitled to op- 
 pose simply so far as regarded their own individual compen- 
 sation, and to the extent of securing themselves tlie adequate 
 protection against injury from the railway, but not to be 
 heard generally against the preamble. (See the case of the 
 Stroud Navigation Company in the proceedings of the com- 
 
 (o) Ridd. Pari. Pract. p. 206. 
 
 (p) Case of Syston and Peterborough Railway Company, 
 cited in Coll. on Railways, App. p. 51. 
 o o 5
 
 cccxxii Apfendix. 
 
 mittee on group (P.) (q) So likewise the committee on 
 group (Z) decided that the Grand Canal Company could only 
 be heard as such and in no other capacity, and consequently 
 that their counsel could not pursue a line of examination 
 calculated to show that a new and better line could be made 
 than that before the committee, (r) 
 
 In some cases a pure incorporeal interest in land has 
 been deemed sutiicient to entitle a party to be heard before 
 a committee. Owners of ferries, for instance, have always 
 been heard to oppose where a railway was intended to 
 traverse the limits of their ferry, on the ground, of course, 
 of the interference with their tolls, though semble it might 
 be otherwise when the railway is intended to run at a dis- 
 tance from their fern', as their interest then is reduced to 
 one of competition only, (s) 
 
 So likewise in the committee on group (DD), certain in- 
 habitants of Perth were heard by counsel against the Scot- 
 tish Central Railway, on the ground of its being intended 
 to occupy a portion of a place called the South Inch, used 
 by the inhabitants as a place of recreation, &c., and in re- 
 gard of which they could at most claim nothing but an 
 easement. 
 
 The rights of owners of tolls, &c., to be heard before par- 
 liament, in so far as regards the insertion in a proposed 
 railway bill of clauses for their own protection, has been re- 
 cognized in various instances. Thus, in group (V), Great 
 Grimsby and Sheffield Junction Railway, the commissioners 
 of Gainsborough Bridge, who had petitioned for the intro- 
 duction of a clause in the bill for the above-mentioned rail- 
 •waj', which would secure thein the adequate compensation 
 for any loss sustained by them from a diminution of toU 
 consequent on the railway passing through their property, 
 and interfering with their right of ferry, which had originally 
 existed by license from the crown, were held entitled to have 
 a clause inserted in the bill for that purpose ; [f) and in 
 another case, (group (S), Ballymena and Belfast Railway), 
 ■where a corporation w-as in the enjoyment of certain harbour 
 dues, secured to them by several acts of parliament, it was 
 decided that they had a right to be heard on their petition 
 against a proposed line of railway, which, if constructed as 
 proposed, threatened to interfere with such dues, by enabling 
 
 (9) Supp. to Votes, p. 1300. 
 (?) See Supp. to Votes, 1845, p. 1101. 
 (s) See ante, App. II. p, ccxlv. 
 (£) Ridd. Pari. Pract. p. 215.
 
 Parliamentary Practice. cccxxiii 
 
 parties to evade the payment of them, so far, that is to say, 
 as regarded the insertion of a clause in the bill for their pro- 
 tection, (m) 
 
 A party who was a shareholder in a line, was held to 
 have no loais standi to be heard against a line, though pos- 
 sessed of an ipterest that would otherwise have given him 
 this right, (j-) 
 
 The rule requiring a physical injury to property to con- 
 stitute a locus standi before a committee, must not be un- 
 derstood as of necessary universal application, but as liable 
 under particular circumstances to exception. These cir- 
 cumstances do not admit of being reduced to any general 
 rule, though for the most part where the rule has been re- 
 laxed, it would seem to have been done either on grounds 
 of public policy, or from a consideration of the extreme 
 hardship of the case made out by the petitioners ; as for in- 
 stance, where there has been reason to apprehend danger or 
 inconvenience to the public, or any considerable section of 
 it, a deterioration of the property of any large body of per- 
 sons, and the like. The inliabitants of Falmouth, for in- 
 stance, who liad petitioned against the Cornwall Railway, 
 on the ground of its not affording them that direct commu- 
 nication with the metropolis to whicli they contended that 
 they were entitled on grounds of national policy, as the 
 most western harbour and packet station of the kingdom, 
 were admitted by a select committee of lords to be heard 
 against the bill, and to set up generally another and more 
 direct line. In the committee on group (L), again, coun- 
 sel was allowed to be heard against the Guildford, Chi- 
 chester and Portsmouth line, on behalf of certain inha- 
 bitants of Portsmouth, who had petitioned against the bill 
 for the above line, on the ground that if it were con- 
 structed as proposed, it would seriously deteriorate their 
 property in the town, though none of them professed that 
 their property would undergo any physical injury from the 
 construction of the proposed line. (//) And in group (V), 
 where the bill for a railway was opposed by a l)ody of three 
 hundred inhabitants of the town of Nottingliam, on the 
 ground of such railway crossing on a level a public road at 
 the entrance of the town, and along which road vast num- 
 bers of persons were hourly passing and repassing, the 
 
 (u) Ridd. Pari. Pract. p. 215. 
 
 (i) Trent Valley Railway Bill, Supf. to Votes, 1845, p. 
 290 ; and Waterford and Limerick Railway, ib. p. 1497. 
 (2/) Supp. to Votes, p. 1310.
 
 cccxxiv Appendix. 
 
 locus standi of the petitioners was at once recognized by the 
 committee, (a) So likewise where the vestry and inhabitants 
 of a parish (Clerkenwell) petitioned against the preamble 
 of a bill for making a certain railway, on the ground that the 
 construction of such railway would inflict a serious injury 
 on the regular trade of the parish, consisting for the most 
 part of watch and clock manufacturers, by reason of the 
 vibrations consequent on the passage of the trains affecting 
 the works of their watches, &c., so much as to render their 
 accurate adjustment impossible, the committee on group (X) 
 decided that the petitioners had a sufficient locus standi to be 
 heard and give evidence against the preamble of the bill. (6) 
 
 In another case, where a petition was presented against a 
 railway by the mayor, burgesses and inhabitants of the 
 borough of Saltash, the substance of which petition was 
 that the proposed crossing by railway trains over a river 
 near the town of Saltash, would be attended with great in- 
 jury to the navigation of such river, and danger to the 
 shipping using the same, a select committee of Lords, 
 (Earl of Ellenborough, chairman), decided that the pe- 
 titioners had such a locus standi as entitled them to be 
 heard and give evidence against the preamble of the bill, (b) 
 
 In another case last session, where opposition was made 
 by the inhabitants of a town to a bill for a railway going 
 to the same, on the ground that it was not approached by 
 such railway in so advantageous a manner for the inhabi- 
 tants as might have been the case had another course been 
 chosen, the petitioners were allowed by the committee to 
 prove that the proposed line of railway was not the best for 
 their interests, but they were restricted from going into 
 detail or giving evidence with regard to any specific line. 
 The case alluded to was that of the Norwich and Brandon 
 Railway (Diss and Dereham Branches), and the decision 
 was given by a select committee in the House of Lords, (c) 
 
 And in the committee on group (EE), the town of 
 Brechin was permitted to be heard against the Aberdeen 
 Railway bill. As likewise in the committee on group (SS) 
 the inhabitants of Nuneaton were heard to oppose the 
 Coventry and Nuneaton line. 
 
 This principle would clearly not extend to towns, Src, at 
 a distance from the line of railway. Thus in the case of the 
 Edinburgh and Northern Railway, group (FF), the in- 
 
 (a) Ridd. Pari. Pract. p. 189. 
 
 (b) lb. p. 190. 
 
 (c) lb. p. 192.
 
 Parliamentary Practice. cccxxv 
 
 habitants of several towns situate in the districts through 
 wliich the line lay, but at distances varying from twenty 
 to thirty miles from its route, opposed the preamble of the 
 bill on the ground that the railway in question did not af- 
 ford so accessible a means of communication for such 
 towns with Edinburgh as it might have done. An objection 
 ■was taken to the opposition on the ground that the towns in 
 question were situated at so great a distance from the line, 
 as to preclude the possibility of their being affected by its 
 success or defeat. The committee decided that the pe- 
 titioners could not be heard, (c) 
 
 2. Of the petition, and herein, \st, of the time of its pre- 
 sentation, and its contents, &;€. The petition must have been 
 presented within three clear days before the meeting of the 
 committee on the bill against which it was presented. By 
 this was meant not three clear days before the committee 
 commenced its sitting, but before it was appointed to meet 
 on the particular bill. This period was often much pos- 
 terior to that of the first sitting of the committee, as in the 
 case of a group of railways referred to the same committee, 
 it often happened, that when the committee first commenced 
 sitting, some of such schemes had not been read a first time 
 or even assumed the shape of bills, so that some time neces- 
 sarily intervened before they could be formally committed, {d) 
 
 Where a petition against a bill was presented later than 
 requisite, a committee determined that they had no power 
 to entertain it, though it was referred to them by order of 
 the House, (e) 
 
 (2dly.) Of general requisites of petition. It must have spe- 
 cified distinctly the grounds of complaint, and those suffi- 
 cient to give a locus standi. Thus, where a petition was in 
 point of fact signed by the parties in the capacity of trustees 
 of different turnpike roads, (they as landowners being all as- 
 senting), but this did not appear on the face of the petition, 
 it was held, that as no landowner had signed the petition as 
 such, and no opposing name of a landowner appeared upon 
 the petition, whilst no mention was made therein of the se- 
 veral trusts in respect of which the parties were interested, the 
 petition was informal and could not be proceeded with. {/) 
 
 (c) Ridd. Pari. Pract. p. 205. 
 
 (d) See ti)e case of Mr. Nias, ante, App. II. p. ccxxxv. and 
 that of Mr. Dimsdale, (Group S), Supp. to Votes, p. 608. 
 
 (e) See Coil, on Railw. p. 50. There was no special order of 
 the House in this case. 
 
 (/) See Scottish Central Railway, Supp. to Votes, 1845, p. 
 895 (Group. DD).
 
 cccxxvi Appendix. 
 
 And where a canal company {g), who were included in the 
 schedule to a railway bill, and whose land was intended to 
 be cut through by the railway, omitted this in their petition, 
 but alleged an intention on the part of a railway company to 
 dry up another canal, thereby consequentially injuring 
 them, they were held to have no locus standi. So decided 
 by committee of Lords (in the case of the S3'ston and 
 Peterborough Railway). And where a petition was pre- 
 sented by a navigation company against the taking up of 
 a certain canal by the promoters of a proposed railway, as 
 being prejudicial to the petitioners' interests, the committee 
 decided that the petition could not be read, as it did not 
 refer to any matter or clause comprised in the bill, nor was 
 it shown by it that the transfer of the canal propert}' to the 
 railway had yet been made, {h) 
 
 Where parties desire to be heard against any clause or 
 provision in a railway bill, there must be a petition presented 
 referring to such clause or provision, and distinctly specifying 
 the ground of complaint against the same. Even a com- 
 peting line has been refused to be heard against the clauses 
 of a bill belonging to the same group to which it was itself 
 referred, where the promoters of such line had failed to pre- 
 sent any petition specifying their grounds of complaint 
 against such clauses, (i). 
 
 Where it is so intended, the petition must expressly pray 
 to be heard by counsel, as otherwise counsel cannot be 
 permitted to appear, unless where the House make an order 
 to that effect. (A-) 
 
 Where the petition alleged a sufficient ground of com- 
 plaint to constitute a locus stuudi, it would not have been 
 vitiated by the addition of other matter; and, indeed, where 
 the locus standi had been once established, parties might be 
 heard on questions of consequential damage which of them- 
 selves would not have afforded a locus standi. {I) 
 
 (o-) Coll. on Railw. Comps. p. 51. 
 
 (h) Midland Counties Junction and Peterborough Railway, 
 group (T), Eidd. Pari, Pract. p. 219. 
 
 (i) So decided in committee on group (AA"), after consulta- 
 tion with the Speaker, Ridd. Pari. Pract. pp. 219, 220. 
 
 (k) See case of Rev. Mr. Willan, Supp. to Votes, 1845, p. 
 306. 
 
 (/) Coll. on Railw. Comps. p. 50 ; as to how petition to be 
 signed, see ante, p. cclxxiv.
 
 Parliamentary Practice. cccxxvii 
 
 2. Of the Grounds of Opposition and the Evidence 
 
 ADDUCIBLE IN SupPORT THEREOF. 
 
 Competing lines put in their maps and plans, and went 
 into evidence in support of their own case, and in opposi- 
 tion to that of their antagonists. 
 
 A competing line, as a general rule, was not allowed to 
 go into evidence of intended branches, &c., in regard of 
 which no plans had been deposited, or at least was confined 
 to general evidence thereof, and this even though such 
 branches, &c., were recommended in the report of the 
 Board of Trade, (m) 
 
 Although, in general, objections to the plans, sections, 
 &c., ought to have been taken before the committee nn the 
 petition, it was nevertheless held to be competent for one 
 competing line to show that such an amount of error existed 
 in the sections of another, as to render the latter scheme 
 impracticable. («) 
 
 A landowner, in opposing a bill, might go into evidence 
 of his own individual grievances, or he miglit endeavour to 
 show the insufficiency of the company's estimates, or that 
 their project was impracticable, &c. but he could not take 
 objections on the ground of non-compliance witli tiic stand- 
 ing orders, which ought to have been taken before tlie com- 
 mittee on the petition, (o) In the committee on group (L), 
 an objection was taken on behalf of a petitioner, to the plans 
 and sections of the Direct Portsmouth Atmospiieric Line, 
 that there were errors in them of such extent as to render 
 the scheme impracticable, without exceeding the limits of 
 deviation allowed by the stat. 8 Vict. c. 20, s. . Notwith- 
 standing the opposition of the counsel for the bill, the com- 
 mittee decided on entertaining tlie objection, though ulti- 
 mately it came to nothing, the error being proved to exist 
 only in the plans, &c., deposited in the Private 15111 OIKce, 
 and not extending to those deposited witli tiie clerk of the 
 peace, in pursuance of which alone the comjjany were bound 
 to make their railway. A similar objection was made bc- 
 
 (m) In the committee on group (B), the counsel for the IF.ir- 
 rogate and Ripon line, one of ihose inclu.lcd in thai \;vm\\t, wns 
 proceeding to examine as to the course of a line hulween Kiiskilf 
 and Leeds proposed by the company, sis suggested in the rei)(>rl 
 of the Board of Trade, but plans of wliich had not been d<-. 
 posited ; the committee decided that only very general (|ucsli,.Ms 
 should be asked as to such line. See also ante, Apji. II. \>. 
 ccxxvi. and p. ccxxxi. 
 
 {n) See ante, p. ccxxvi. 
 
 (o) See ante, p. ccxxvii.
 
 cccxxviii /Appendix. 
 
 fore the committee on group (GG), on behalf of the trus- 
 tees of the Clyde, to the Glasgow Junction Railway Bill ; 
 and there again it was entertained by the committee, though 
 on going into the evidence, it ultimately came to nothing. 
 
 And where certain persons sought to obtain parliamentary 
 powers for the construction of two new portions of railway on 
 the broad gauge to form a junction at either terminus with an 
 existing railway termed the Hayle Railway on the narrow, 
 the whole being intended by the promoters to constitute one 
 entire line of railway on the broad gauge, of which the Hayle 
 Railway was to be the centre, it was objected, and indeed 
 substantiated, on behalf of an opposing landowner, that to 
 carry out their object the promoters would have to widen 
 the Hayle line so as to adapt it for the broad gauge, and 
 that this involved the laying down additional rails, &c. on 
 several public highways which were crossed by the Hayle 
 line on a level, and that no parliamentary notice having 
 been given by the promoters of their intentions in this re- 
 spect, the project was impracticable. Additional objections 
 were also taken to the estimate, curves, gradients, &c. of the 
 new portions of the line; eventually, the preamble of the 
 bill was negatived, (o) 
 
 A landowner might likewise go into evidence to show the 
 existence of a better line than that before the committee. 
 The only question was as to the character of the line which 
 he was thus entitled to set up, and the evidence adducible 
 for that purpose. 
 
 (1st.) As to the character of the line. That an opposing 
 landowner might show an improvement of the line before 
 the committee, seems to have been undisputed. A more 
 important question, and one which was the subject of no 
 little discussion in various instances, was, whether he might 
 give evidence of the existence of a better line through a dif- 
 ferent line of country, provided it were between the same 
 termini, and it would seem, upon the whole, that it was 
 competent for him to do so. The question arose before the 
 committee on group (V), in the course of the examination 
 of a witness, on the petition of the Duke of Devonshire 
 against the iSTewark and Sheffield Railway. The counsel 
 for the Duke contended that it was competent for the op- 
 ponents of the bill to show that the proposed line was un- 
 necessary, inasmuch as there was a better and shorter line 
 by Retford and Worksop ; the committee resolved that the 
 opponents of the bill should for the time being confine their 
 evidence to the question of any miprovement of the pro- 
 
 (o) Group (N), West Cornwall Railway.
 
 Parliamentary Practice. cccxxix 
 
 posed line before the committee ; that the committee would 
 suspend their decision on the preamble of the said bill until 
 they heard the evidence in support of the bill between Ches- 
 terfield and Sheffield, and then they would take into con- 
 sideration the expediency of receiving evidence as to the 
 best railway communication between Sheffield and Newark, 
 keeping in view the importance of the districts to be tra- 
 versed by the line. Subsequently, during the hearing of 
 the case of the Sheffield and Chesterfield bill, the question 
 was again raised, when the committee resolved that the 
 opponents of the bill miglit be allowed to give evidence 
 against the preamble by showing that it was not the best 
 line that might be made between the termini of Chesterfield 
 and Sheffield. So, likewise, the committee on group (0) 
 decided, in the case of the Grand Junction (Potteries 
 branch) line, that opposing landowners might go into the 
 general merits of a rival scheme of railway accommodation 
 for the district of the Potteries, and also might show that 
 the scheme was a feasible and bona fide one, there being a 
 provisional company, supported by a competent body of 
 subscribers actually formed for its construction. And a com- 
 mittee of the House of Lords decided, in the case of the 
 Southampton and Dorchester Railway, that opposing land- 
 owners appearing there for the first time might set up, not 
 by plan and section, but by general evidence, a line from 
 Dorchester to Salisbury, and thence to Southampton, which 
 had been projected by a company that did not appear, {p) 
 
 The line, however, thus sought to be set up must, it is 
 conceived, have been substantially, at least, coterminous 
 with the line before the committee. A landowner opposing 
 the Cornwall Railway between Plymouth and Fahnouth, 
 sought to show that a better line might be made tlirough 
 the centre of Cornwall from Exeter to Fahnouth, the Corn- 
 wall, as it was argued, being but an extension of the Soutii 
 Devon line between Exeter and Plymouth. All evidence 
 of the proposed new line was rejected, in part on the ground 
 that the line attempted to be set up was not coterminous 
 with the opposed line. On appeal to the Sjjeaker, tliis de- 
 cision was confirmed, on the grounds solely that the line 
 attempted to be set up was not coterminous with the op- 
 posed line, (q) But before the select committee of lords 
 
 (p) Coll. on Railw. A pp. p. 53. A similar decision was come 
 to by the committee on group (N), ia liie case of a liinilowner 
 opposing the Cornwall line. 
 
 {q) Coll. App. p. 52, 53. A contrary decision to tins w.i«, 
 however, it is believed, come to by a select conimilleu of Lord* 
 during the last session.
 
 cccxxx Appendix. 
 
 the inhabitants of Fahnouth, in opposing the same bill, 
 were permitted to give evidence of such proposed central 
 line. 
 
 (2ndly.) Of the character of the evidence admisublefor the 
 purpose of' setting up a new Line. As a general rule, then, 
 it would seem that a landowner was only allowed to go into 
 general evidence of the merits of the proposed line, and 
 could not enter upon detailed inquiries as to its engineering 
 character, or put in plans and sections, whether of his own 
 or of some company in the back ground, that had not been 
 deposited in parliament. 
 
 In the committee on group (O), for instance, Mr. Bidder, 
 the engineer, called by the opponents of the line before the 
 committee, being under examination, and an objection being 
 taken by the counsel for the bill to the line of examination 
 pursued by the opponent's counsel, tlie committee resolved 
 that Mr. Bidder be allowed to give his general opinion upon 
 the merits of the rival scheme as compared with that before 
 the committee, but that he confine his engineering evidence 
 to the objections to the line between Stoke and Basford, or 
 Crewe, i. e. the line before the committee. So, also, the 
 committee on group (G G) decided, in the case of the peti- 
 tion of the Clyde Trustees against the Glasgow Junction bill, 
 that the petitioners might go into general evidence as to 
 the merits of the line they opposed, but that they could not 
 hear evidence as for a competing line on a project that had 
 deposited no plans or sections. 
 
 In the committee on group (V), however, the Duke of 
 Devonshire was allowed to make use of plans and sections 
 deposited by a company who were not included in the same 
 group with the line he was opposing, for the purpose of 
 showing that the line might more advantageously be carried 
 through another part of his property, (r) This was earned 
 still further by the committee on group (W), in the case of 
 Mr. Smyth, a petitioner against the Wakefield, Pontefract 
 and Goole Railway, where an engineer called for the peti- 
 tioner was allowed to speak to plans and sections that had 
 not been deposited before the house, for the purpose of 
 showing the existence of a better line. This decision, how- 
 ever, it may be remarked, was subsequently quoted on be- 
 half of the opponents of a bill before another committee, in 
 order to induce the latter to accede to a like application, but 
 without success, the latter committee refusing to follow it. 
 
 In one case the inhabitants of a town which had peti- 
 
 (r) Coll. App. p.' 52.
 
 Parliamentary Practice. cccxxxi 
 
 tioned against a line of railway intended to approach such 
 town were allowed to make use of evidence closely similar 
 in kind to the putting in of plans and sections, (case of the 
 Nottingham and Leicester Railway, group ( V) ). There, the 
 inhabitants of Nottingham, wlio petitioned against the pre- 
 amble of the bill, having called as a witness an engineer 
 employed by them, wished to prove through him thar by a 
 line of which he had made a pencil sketch the inconveni- 
 ence of crossing on the level a road in the vicinity of the 
 town would be avoided. On an objection being taken to 
 the reception of the pencil sketch in evidence on the ground 
 that the case was analogous to one where a witness is ex- 
 amined to prove the execution of a line on plans which 
 had not been deposited, the committee decided that the 
 cases were not anologous, and allowed the petitioners to 
 give the evidence they wished, (s) 
 
 And again, before a select committee of Lords, the inha- 
 bitants of Falmouth, in opposing the Cornwall Railway, 
 were permitted to examine an engineer called by tliem as a 
 ■witness from a section which he held in his hand as to the 
 engineering character of a line through the centre of Corn- 
 wall, and which they contended was a better line than that 
 before the committee, though they were not allowed to put 
 in the plans and sections deposited by a provisional company 
 organized for the purpose of constructing this very line. 
 
 The decisions of committees of the upper house on this 
 subject almost invariably confine the landowner to giving 
 evidence as to the general direction of a better line, and 
 prevent him from going into the details of any particular 
 project, {t) 
 
 In the case of the Wilts, Somerset and Weymouth Rail- 
 way before a select committee of Lords ( Lord Keny on, cliair- 
 man), the committee decided that a landowner could not 
 cross-examine a witness with a view to sliow that a jjarticular 
 project, which had no parliamentary existence, was a prefer- 
 able one to that before the committee, and that he was only 
 entitled to be heard as a landowner and not as an individual 
 connected with or interested in any competing project, it) 
 
 In the case of the Southampton and Dorchester Railway, 
 before a select committee of Lords (Lord Auckland, chair- 
 man), where the circumstances were similar to those in the 
 last-mentioned case, the decision of tlie coTumiltee was the 
 same. And in the case of tlie Direct Portsmoutli Railway, 
 
 (s) Ridd. Pari. Pracl. p.206. 
 (0 lb. p. 200.
 
 cccxxxii Appendix. 
 
 before a select committee of Lords, (Earl of Hardwicke, 
 chairman), the committee decided that the landowners 
 could not be heard with regard to any competing line not 
 before the committee, and having no parliamentary exist- 
 ence. 
 
 In the Erewash Valley Railway, before a select com- 
 mittee of Lords (Lord Lyttleton, chairman), landowners 
 opposing the line were allowed to give evidence as to the 
 general direction of a better line than that before the com- 
 mittee, but not to go into the minutiae of any particular 
 project. 
 
 A landowner was not permitted to go into the above line of 
 opposition where really, and in point of fact, he was seeking 
 not to establish an independent case of his own, but to set 
 up that of some other company, which, by reason of its 
 not having deposited plans, &c., could not be heard before 
 the committee as a competing line, (z) 
 
 Section VII, 
 
 PROCEEDINGS RELATING TO BILLS RE-INTRO- 
 DUCED INTO PARLIAMENT DURING THE PRE- 
 SENT SESSION, (a) 
 
 \, Orders of House of Commons. 
 2. Resolutions of House of Lords. 
 
 1. Orders of House of Commons. 
 
 Notices in newspapers and gazettes. That the promoters 
 of such bills shall give notice by advertisement for six suc- 
 cessive weeks, in the months of October and November, in 
 the London, Edinburgh or Dublin gazette, as the case may 
 be, and in the local paper or papers which may be usually 
 in circulation in the part of the country through which the 
 line of railway is proposed to pass, of their intention to pre- 
 sent a petition for the re-introduction of any such bill. (6) 
 
 Committee to examine whether petition he the same as that 
 in 1845. That upon any petition for leave to bring in a 
 railway bill which shall be presented to the house during 
 the session of 1846, and refen-ed to the committee on peti- 
 
 (s) See ante, p. cccxix, 
 
 (u) See further, post, sect. IX. 
 
 (6) H. C. 43 a.
 
 Parliamentary Practice. cccxxxiii 
 
 tions, the committee do examine whether the said petition 
 be the same in substance as any petition for the same pur- 
 pose, and from the same parties, which was presented in 
 the session of 1845 ; and in that case, whether any bill 
 brought into the house in pursuance of such petition in the 
 session of 1845, was pending in either house of parliament 
 on the termination of such session ; and if so, whether a 
 subscription contract, as required by the standing orders, 
 binding in the usual way the subscribers to the undertaking* 
 has been entered into and is valid at the time of such in- 
 quiry, and whether the deposit of £5 per cent, upon such 
 subscription is lodged in the manner required by the stand- 
 ing orders, {b) 
 
 If petition be the same as in 1845, standing orders to be 
 held complied with. That in such case, and on proof of 
 such notice having been given as aforesaid, and in case it 
 should appear that such bill had, at the end of the session 
 of 1845, been pending in the House of Lords, or if pending 
 in the House of Commons, had been ordered to be engrossed, 
 the standing orders with respect to any such bill shall be 
 held to have been complied with.(c) 
 
 Time between second reading and meeting of committee. 
 That the time between the second reading of any such bill 
 which shall be brought in in the session of 184G and the 
 meeting of the committee thereon be shortened to three 
 clear days, the parties giving the regular notices in the Pri- 
 vate Bill Office, (d) 
 
 Committee to examine whether the bill be in every respect 
 the same as such former bill. That the committee on any 
 such bill do examine whether the bill be in every respect 
 the same as such former bill at the last stage of its pro- 
 ceeding in this house in the session of 1815, and that in 
 such case no evidence shall be received by sucli conunitlee ; 
 but that on the reception and adoption by the house of a 
 report from such committee, that the bill reft-rred to tiicni 
 is in every respect the same as such former bill at the last 
 stage of its proceeding in this house in the session of 1845, 
 such bill may be ordered to be engrossed without any furlhcr 
 proceeding in respect thereof, (c) 
 
 From a purview of these orders it would seem that ihc 
 evidence to be adduced by the promoters of the class of 
 bills in question before the committee on petitions is in cer- 
 tain respects peculiar to that class. 
 
 (b) H. C. 43 b. (d) H. C. 125 a. 
 
 (c) H. C. 43 c. (e; 11. C. 88 a.
 
 cccxxxiv Appendix. 
 
 1st. Proof must be given before tlie committee of tbe 
 identit}' of the petition, &c. with that presented in the ses- 
 sion of 1845 ; for which purpose such petition or a certified 
 copy of it must be produced to the committee. The com- 
 mittee must also be satisfied that a bill brought in in pursu- 
 ance of such petition was pending, &c. on the termination 
 of the session. To establish this point the proper medium 
 of proof is an inspection of the journals of the house wherein 
 the bill was so pending, (i) 
 
 The project having passed the committee on petitions, it 
 still remains for the promoters to satisfy the committee on the 
 bill that it is in every respect the same as the former bill at 
 the last stage of its proceedings in the House of Commons 
 during the session of 1845. The proper evidence to esta- 
 blish this is the production from the Private Bill Office of 
 the paper bill preserved there. 
 
 2. Resolutions of House of Lords. 
 
 1. That any bill included in the second class under the 
 standing order of the 16th August, 1838, and which shall 
 be before this house in the present session, but shall not pass 
 for want of time, shall be marked by the chairman of com- 
 mittees, and shall be proceeded with in the ensuing session 
 if such bill be brought from the commons in every respect 
 the same bill as that which shall have been so marked by 
 the chairman. 
 
 2. That any bill of the said second class which shall have 
 been stopped in its progress through the House of Commons 
 in the present session by reason of want of time, and which 
 shall have been brought up to this house in the ensuing ses- 
 sion marked by the Speaker of that house as having been so 
 stopped, shall be in like manner received by this house. 
 
 3. That those bills which shall have been stopped in this 
 house and so marked as aforesaid by the chairman of commit- 
 tees, and also those bills which shall be brought up for the 
 first time next session marked by the Speaker of the House 
 of Commons as aforesaid, shall be proceeded with upon the 
 same notices as would have been required by this house un- 
 der its standing orders during tbe present session and upon 
 no other notice, (fc) 
 
 (i) As to the further evidence required in regard of any such 
 bill before the committee on the petition, see ante, p. cccvi. et seq. 
 
 (k) Minutes of Proceedings, House of Lords, 4th July, 1845, 
 p. 740.
 
 Parliamentary Practice. 
 Section VIII. 
 
 COSTS OF PRIVATE BILLS. 
 
 1. Of Costs in the House of Commons. 
 
 2. Of Costs in the House of Lords. 
 
 1. Of Costs in the House of Commons. 
 
 In the House of Commons the statute by which provision 
 is made on this subject is the stat. 6 Geo." 4, c. 123, which 
 estabHshes both a taxation of such costs, and hkewise a 
 more easy means of recovering the same. 
 
 To consider then, 1 st, the former point, viz. the taxation, 
 the stat. s. 1, enacts that, 
 
 If any petitioner or petitioners for a private bill brought 
 into the Commons House of Parliament, or the agent or 
 agents of any such petitioner or petitioners shall make appli- 
 cation to the Speaker of the House of Commons complain- 
 ing of the amount of the costs and expenses charged by 
 any parliamentary agent or solicitor, or any other person 
 employed in soliciting or preparing such bill, or in comply- 
 ing with the standing orders relative thereto, on behalf of 
 any such petitioner; or if any parliamentary agent or soli- 
 citor, or other person employed in soliciting any such pri- 
 vate bill, or in preparing the same, or in complying with the 
 standing orders relative thereto, shall make application to 
 the Speaker, complaining that he is aggrieved by the non- 
 payment of the costs and expenses charged by him in re- 
 spect of any such private bill, the Speaker, u])on receiving 
 any such application, is to' direct that sucli costs and ex- 
 penses, so far as the same shall relate to the House of Com- 
 mons, shall be taxed by such person or persons as the 
 Speaker shall think proper to appoint. 
 
 The person so appointed for the taxing of such costs and 
 expenses is to tax the same, and to report to tlie Speaker 
 the amount of such costs and expenses wliicb lie shall think 
 fit to be allowed upon such taxation. The Speaker is then, 
 upon application, to deliver to the person or persons con- 
 cerned therein and requiring the .same a certificate, .signed 
 by himself, expressing the amount of the coaU and expenses 
 allowed by such report. 
 
 The person so ajjpointed to tax such costs and oxpenKOH 
 is authorised to demand and receive for such fuxnlion and 
 report such fees as shall be from time to time fixed l)y any 
 resolution of the House of Connnons, and for that jiurposc
 
 cccxxxvi Appendix. 
 
 to charge the amount of such fees at the foot of such re- 
 port, either against the party applying for such taxation, or 
 against any party complained of, or in such proportions 
 against each of such parties as such person so taxing such 
 costs may think fit. 
 
 Such certificate, so signed by the Speaker, is conclusive 
 evidence of all demands therein certified, and the party 
 claiming under the same is (upon receiving the amount 
 so certified) to give a receipt at the foot of such certificate, 
 and such receipt is a suflScient discharge for such costs and 
 expenses. 
 
 2dly. Of the mode of recovering such costs, Sfc. provided 
 by the statute. If any petitioner, agent or other person 
 liable to the payment of such costs and expenses shall re- 
 fuse to pay the amount so certified bj' the Speaker in any 
 action which shall be commenced for the recovery of such 
 costs and expenses, such certificate so signed by the Speaker 
 as aforesaid shall have the force and efi'ect of a warrant to 
 confess judgment, and the court in which such action shall 
 be commenced shall, upon motion and production of such 
 certificate, order judgment to be entered up for the sum 
 specified in such certificate, in like manner as if the defend- 
 ant or defendants in any such action had signed a wan-ant 
 to confess judgment in such action to that amount. (/) — 
 (S.2.) 
 
 2. Of Costs in the House of Lords. 
 
 The provisions on the subject of costs in the House of 
 Lords are very similar in their nature to those in the Com- 
 mons, though in certain respects more comprehensive ; and 
 first as to the taxation of such costs. If any petitioner or pe- 
 titioners for ox against a private bill brought into the House 
 of Lords, or passed by the Commons House of Parliament 
 and carried up to the House of Lords, or the agent or agents of 
 any such petitioner or petitioners, shall make application to 
 the clerk of the parliaments, when discharging the duties of 
 his office in person, or in his absence to the clerk assistant, 
 complaining of the amount of the costs, charges, and e.K- 
 penses charged by any parliamentary agent ; or if any par- 
 liamentary agent shall make application to the clerk of the 
 
 (0 As to effect of certificate under 9 Geo. 4, c. 22, s. 63, 
 and the course of proceeding in regard of it, iScc. see Fecior v. 
 Beacon, 5 Bing. N. C. 302; Bailey v. Bond, 8 Dowl, 119^ 
 Hanson v. Dundas, 3 Bing. N. C. 123, 180, 556.
 
 Parliamentary Practice. cccxxxvii 
 
 parliaments, or clerk assistant as aforesaid, complaining that 
 he is aggrieved by the nonpayment of the costs, charges, 
 and expenses charged by him in respect of any such private 
 bill or petition as aforesaid; the clerk of the parliaments 
 or clerk assistant as aforesaid, upon receiving any such ap- 
 plication, is to direct that such costs, charges, and expenses, 
 so far as the same shall relate to the House of Lords, shall 
 be taxed by such person or persons as he shall think proper 
 to appoint. The person or persons so appointed for the 
 taxing such costs, charges, and expenses, is and are to tax 
 the same, and to report to the clerk of the parliaments, or 
 clerk assistant as aforesaid, the amount of such costs, 
 charges and expenses which such person or persons shall 
 think fit to be allowed upon such taxation. The clerk of 
 the parliaments, or clerk assistant as aforesaid, is upon ap- 
 plication to deliver to the person or persons concerned 
 therein, and requiring the same, a certificate, signed by him- 
 self, expressing the amount of the costs, charges, and ex- 
 penses allowed in and by such report, (m) 
 
 The person or persons so appointed to tax such costs, 
 charges, and expenses, is and are authorized respectively 
 to demand and receive for such taxation and report such 
 fees as shall be from time to time fixed by any resolution 
 of the House of Lords, and for that purpose to charge the 
 amount of such fees at the foot of such report, either against 
 the party applying for such taxation, or against any party 
 complained of, or in such proportions against each of such 
 parties as such person or persons so taxing such costs, 
 charges, and expenses may think fit. 
 
 Such certificate, so signed by the clerk of the parliaments, 
 or clerk assistant as aforesaid, is conclusive evidence of all 
 demands therein certified ; and the party claiming under 
 the same is (upon receiving the amount so certified) to give 
 a receipt at the foot of such certificate, and such receipt is a 
 sufficient discharge for such costs, charges, and expenses. («) 
 
 The certificate of the clerk of the parliaments or clerk as- 
 sistant has the like force and effect as the Speaker's certi- 
 ficate, (o) 
 
 Taxators have power to administer oaths to the parties 
 appearing before them in support of or in opposition to sucii 
 taxation, touching the matters relating thereto ; and to re- 
 quire the production of proper vouclicrs for all monies 
 charged as having been paid by any parliamentary agent in 
 
 (r/i) 7&8 Geo. 4, c. 64, s. I. 
 
 (n) lb. 
 
 (o) lb. s. 2, see aote, p.cccxxxvi.
 
 cccxxxviii Appendix. 
 
 the prosecution of or opposition to such private bill as afore- 
 said, (p) 
 
 The clerk of the parliaments, or clerk assistant as afore- 
 said, is to prepare a list of all charges which shall appear to 
 him to be justly payable to parliamentary agents, for their 
 skill, time, and labour bestowed by them in the prosecution 
 o{ or opposition to such private bills in the House of Lords 
 as aforesaid ; and such list of charges, if approved by the 
 House of Lords, is binding and conclusive upon all parties 
 concerned therein. (9) 
 
 Section IX. 
 
 RESOLUTIONS, &C. OF PRESENT SESSION RELATIVE 
 TO RAILWAY BILLS. (?■) 
 
 I. Resolutions, &c. of House of Commons. 
 IL Resolutions, &c. of House of Lords. 
 
 I. Resolutions, &c. of House of Commons. 
 
 First Report of Select Committee on Railways of 
 '5th February, 1846. 
 
 The select committee appointed to consider the mode in 
 which the house shall deal with the railway bills proposed 
 to be submitted to the house during the present session, and 
 who are empowered to report from time to time to the house, 
 have considered the matters referred to them, and agreed 
 to the following report: — 
 
 That for the purpose of facilitating the dispatch of rail- 
 way business during the present session, it is expedient that 
 a portion of the railway bills should commence in the House 
 of Lords. 
 
 That with respect to any railway bills which, in pursuance 
 of these resolutions, shall commence in the House of Lords 
 during this session, this house will not insist on their privi- 
 lege with regard to the clauses fixing and regulating rates 
 and tolls in such bills. 
 
 That with a view of affording early and increased means 
 of employment in Ireland, it is expedient to give facilities 
 for the early consideration of Irish railway bills. 
 
 (p) 7 & 8 Geo. 4, c. 64, s. 3. 
 
 (9) lb. s. 4. 
 
 (j) See further, Addenda.
 
 Parliamentary Practice. cccxxxix 
 
 That, for the attainment of this object, it is expedient that 
 all Irish railway bills should, in the present session, com- 
 mence in the House of Lords. 
 
 That it is expedient that all bills which compete with or 
 ought to be considered in connection with any bills, the 
 promoters of which shall prove themselves entitled to the 
 privileges agreed to be granted in certain cases by the reso- 
 lutions of this house of the 7th July last, shall commence 
 in the House of Lords. 
 
 That the parties promoting railway bills which, by the 
 above resolutions, are to commence in the House of Lords, 
 may (notwithstanding any proceeding respecting such bills 
 in the House of Lords) prove before the committee on 
 petitions of the House of Commons that they have complied 
 with the standing orders of this house, and the report of 
 such committee shall be ordered to lie on the table. If the 
 committee should report that the standing orders have not 
 been complied with, their report shall be referred to the 
 committee on standing orders, whose report shall be ordered 
 to lie on the table. 
 
 That when a railway bill shall have commenced in the 
 House of Lords, and shall be sent down to tlie House of 
 Commons from the House of Lords, it shall be read the 
 first time in the House of Commons, and shall then be re- 
 ferred to the committee on petitions, to uscertuin whether 
 the railway bill so sent down is suhstantiuUi/ in accordance 
 with the standing orders, as determined by the House of 
 Commons, (r) 
 
 Second Report of lOth February, I84G. 
 
 The select committee appointed to consider the mode in 
 which the house shall deal with the railway bills proposed 
 to be submitted to the house during the present session, and 
 who are empowered to report their opinion thereupon fo tlie 
 house, have further considered the matters referred to them, 
 and agreed to the following report : — 
 
 L That a committee of five members be appointed, to be 
 called The Classification Committee of Railway Bills, and 
 that three be the quorum of such committee. 
 
 (r) The resolutions contained in the above report were sub- 
 sequently adopted by the house on the 6lh February, the follow- 
 ing words being substituted by the House in lieu of those n. 
 italics. •' who shall report whether the standing orders huve been 
 complied with, or whether any report with reference to siihstan- 
 tially the same bill has been previously laid on the table ol tho 
 
 House." 
 
 pp2
 
 cccxl Appendix. 
 
 2. That copies of all petitions for railway bills presented 
 to the house be laid before the said committee . 
 
 3. That the committee of classification shall inquire and 
 report what railway bills compete with, or ought to be con- 
 sidered in connection with, any railway bills, the promoters 
 of which shall have proved themselves entitled to the privi- 
 lege agreed to be granted in certain cases by the resolutions 
 of this house of the 7th July last. 
 
 4. That the committee of classification shall form into 
 groups all other railway bills which, in their opinion, it 
 would be expedient to submit to the same committee. 
 
 5. That, as soon as the committee of classification shall 
 have determined what railway bills are to be grouped 
 together, they shall report the same to the house, and all 
 petitions against any of the said bills shall be presented to 
 the house three clear days before the meeting of the com- 
 mittee thereon. 
 
 6. That no railway bill be read a first time later than the 
 next day but one after the report of the committee on 
 petitions or of the standing order committee on such bill, 
 as the case may be, shall have been laid on the table, except 
 by special order of the house. 
 
 7. That there be not more than seven clear days between 
 the first reading of any railway bill and the second reading 
 thereof, except by special order of the house. 
 
 8. That the breviate of every railway bill shall be laid on 
 the table of the house, and be printed and delivered one 
 clear day before the second reading. 
 
 9. That such railway bills as shall have been read a first 
 time before the house shall agree to these resolutions, shall 
 be read a second time within seven clear days thereafter. 
 
 10. That such of the standing orders as relate to the 
 composition of the committees on private bills, and the 
 orders consequent thereon, be suspended so far as regards 
 railway bills pending in the course of the present session. 
 
 11. That committees on railway bills during the present 
 session of parhament shall be composed of a chairman and 
 four members, to be appointed by the committee of selec- 
 tion. 
 
 12. That each member of a committee on a railway bill 
 or bills, shall, before he be entitled to attend and vote on 
 such committee, sign a declaration that his constituents have 
 no local interest, and that he himself has no personal interest 
 for or against any bill referred to him ; and no such com- 
 mittee shall proceed to business until the whole of the 
 members thereof shall have signed such declaration.
 
 Parliamentary Practice. cccxli 
 
 13. That the promoters of a railway bill shall be pre- 
 pared to go into the committee on the bill on such day as 
 the committee of selection shall, subject to the order that 
 there be seven clear days between the second reading of 
 every private bill and the sitting of the committee thereupon, 
 think proper to appoint, provided that the classification 
 committee shall have reported on such bill. 
 
 14. That the committee of selection shall give each 
 member not less than fourteen days' notice of the week in 
 which it will be necessary for him to be in attendance, for 
 the purpose of serving, if required, on a railway bill com- 
 mittee. 
 
 15. That the committee of selection shall give each 
 member a sufficient notice of his appointment as a member 
 of a committee on a railway bill, and shall transmit to him 
 a copy of the twelfth resolution, and a blank form of the 
 declaration therein required, with a request that he will 
 forthwith return it to them properly filled up and signed. 
 
 16. That if the committee of selection shall not within 
 due time receive from each such member the aforesaid 
 declaration, or an excuse which they shall deem sufficient, 
 they shall report to the house the name of such defaulting 
 member. 
 
 17. That the committee of selection shall have the power 
 of substituting at any time before the first meeting of a 
 committee, another member for a member whom they shall 
 deem it proper to excuse from serving on that committee. 
 
 18. That power be given to the committee of selection to 
 send for persons, papers and records in the execution of the 
 duties imposed on them by the foregoing resolutions. _ 
 
 19. That no member of a committee shall absent himself 
 from his duties on such committee, unless in the case of 
 sickness, or by leave of the house. 
 
 20. That all questions before committees on railway 
 groups or bills shall be decided by a majority of voices, in- 
 cluding the voice of the chairman ; and that whenever the 
 voices shall be equal, the chairman shall liave a second or 
 casting vote. 
 
 21. That, if the chairman shall be absent from the com- 
 mittee, the member next in rotation on the list (who shall 
 be present) shall act as chairman. 
 
 22 That committees shall be allowed to proceed so long 
 as three members shall be present, hut not with a lens 
 number, unless by special leave of the house. 
 
 23 That if on any day within one hour after the tune 
 appohited for the meeting of a committee three n.e.nberH 
 shall not be present, the committee shall be adjournal to
 
 cccxlii Appendix. 
 
 the same hour on the next day on which the house shall sit, 
 which had been fixed for that day. 
 
 24. That in the case of a member not being present 
 within one hour after the time appointed for the meeting of 
 the committee, or of any member absenting himself from 
 his duties on such committee, such member shall be re- 
 ported to the house at its next sitting. 
 
 25. That each committee shall be appointed to meet on 
 each day of its sitting not later than twelve o'clock, unless 
 by the regular vote of the committee. 
 
 26. That committees on railway bills have leave to sit in 
 the present session, notwithstanding any adjournment of the 
 house, if the committee shall so think fit. 
 
 27. That every committee on a railway bill shall fix the 
 tolls, and shall determine the maximum rates of charge for 
 the conveyance of passengers (with a due amount of lug- 
 gage) and of goods on such railway, and such rates of 
 charge shall include the tolls, and the costs of locomotive 
 power, and every other expense connected with the convey- 
 ance of passengers (with a due amount of luggage) and of 
 goods upon such railway ; but if the committee shall not 
 deem it expedient to determine such maximum rates of 
 charge, a special report, explanatory of the grounds of their 
 omitting so to do, shall be made to the house, which special 
 report shall accompany the report of the bill, (s) 
 
 Third Report of 17th February, 1846. 
 
 The select committee appointed to consider the mode in 
 which the house shall deal with railway bills proposed to 
 be submitted to the house during the present session, have 
 further considered the matters referred to them, and agreed 
 to the following report : — 
 
 The number of petitions for railway bills which have been 
 presented this session have been stated to your committee 
 to amount to 562, viz. : — 
 
 For Railways in England and Wales . . 395 
 
 Scotland 120 
 
 Ireland 47 
 
 The above numbers include petitions for amalgamation 
 bills, and in some cases there are more petitions than one 
 for the same scheme. After the deduction to be made on 
 
 (s) The resolutions embodied in the above report were subse- 
 quently adopted by the house.
 
 Parliamentary Practice. cccxliii 
 
 this account, the number of distinct railway schemes seems 
 
 to be, — 
 
 For England 351 
 
 Scotland 83 
 
 Ireland 47 
 
 Total ... 481 
 
 As, however, many of these schemes may fail from non- 
 compliance with the standing orders, the number of bills 
 presented to parliament may possibly fall considerably short 
 of this amount, and your committee are of opinion that it 
 will not be necessary or expedient in the present session of 
 parliament to refer mere projects to committees, as was 
 done, owing to peculiar circumstances, in the last session. 
 
 From a statement prepared by the officers of the Board 
 of Trade, it would appear that if the same principle of 
 grouping which was adopted last year should be followed 
 in the present session, the railway schemes in England and 
 Wales might be formed into 51 groups, and those for Scot- 
 land into 10; about 61 select committees would therefore 
 be required. 
 
 As the house has already ordered that all Irish railway 
 bills and a certain limited class of English bills (the latter 
 of which are included in the foregoing statement) should 
 commence in the House of Lords, it is impossible to say 
 how many of these may be sent down to the House of 
 Commons. The number of groups into wliich railway 
 schemes for the united kingdom were divided last year was 
 52, but owing to various circumstances only 15 committees 
 appear to have actually sat. 
 , The necessity of considering so great a number of railway 
 bills, in addition to other private bills, may certainly be ex- 
 pected to produce an unusual and inconvenient pressure 
 upon the time of members of the house ; but your com- 
 mittee trust, that as committees on railway bills may in this 
 session begin to sit at an earlier period than in tlie last, it 
 will not be found impracticable to constitute the requisite 
 number of committees during the progress of the session. 
 
 Under these circumstances your committee have not 
 deemed it advisable to recommend to the house to make 
 any selection from, or to place any limitation on the num- 
 ber of railway schpmcs to be submitted to the consideration 
 of parliament during the present session. 
 
 As your committee, however, believe that much of the 
 time of the select committees on railway bills is consumed, 
 with little public benefit, in minute and detailed inquiries
 
 cccxliv Appendix. 
 
 into the amount of traffic and the probable profit to the 
 projectors, your committee are of opinion that the standing 
 orders on these points should be altered, and that it should 
 no longer be obligatory on committees on railway bills to 
 make special reports on them. 
 
 At the same time, your committee have no wish to fetter 
 the discretion of the select committees to make such inqui- 
 ries as they ma}' judge proper with regard to population, and 
 to the extent of accommodation that would be afforded to the 
 public, where they consider such information to be required. 
 
 Your committee beg further to suggest, that power be 
 given to select committees to refer the consideration of any 
 unopposed railway bill included in the group referred to 
 them to the chairman of ways and means and the mem- 
 bers ordered to prepare and bring in the bill, to be dealt 
 with as other unopposed bills. 
 
 19th February, 1846. 
 
 31. Private Bills. — Resolved, That no notice for a com- 
 mittee on a petition for a private bill be received at 
 the Private Bill Office which shall fix for the first 
 meeting of such committee any day later than Friday, 
 the 6th day of March next. 
 
 Resolved, That no notice of ])ostponement of any 
 such committee be received at the Private Bill Office 
 except by the authority of the committee on petitions 
 for private bills. 
 
 56. Railwai/ Bills. — Paragraphs 7, 8 and 9 of standing 
 order, No. 87, read as follow — 
 " That in the case of a railway bill the committee report 
 specially — 
 
 7. The sufficiency or insufficiency for agricultural, 
 commercial, manufacturing or other purposes of the 
 present means of conveyance and of communication 
 between the proposed termini, stating the present 
 amount of traffic by land or water, the average 
 charges made for passengers and goods, and time 
 occupied. 
 
 8. The number of passengers and the weight and 
 description of the goods expected upon the proposed 
 railwaj'. 
 
 9. The amount of income expected to arise from 
 the conveyance of passengers and goods, and in 
 what proportion ; stating also generally the descrip- 
 tion of goods from which the largest revenue is 
 anticipated." 
 
 and repealed.
 
 Parliamentary Practice. cccxlv 
 
 25th February, 1846. 
 46. Breviates of Private Bills.— Ordered, That standing 
 order, No. 114, requiring the breviate of all private 
 bills to be laid on the table three clear days before the 
 second reading of such bills, — and standing order, No. 
 119, requiring breviates of bills amended in committee 
 to be submitted to the chairman of ways and means, 
 and laid on the table the day previous to the con- 
 sideration of the report, — be suspended with respect to 
 all bills entitled to the privileges agreed to be granted 
 in certain cases by the resolutions of the house on the 
 7th day of July last. 
 
 26th Februari/, 1846. 
 
 48. Railway Bills. — Ordered, That all select committees 
 on railwaj' groups or bills be empowered to refer (if 
 they shall so thiiik fit) to the chairman of ways and 
 means, together with the members ordered to prepare 
 and bring in each such bill, any unopposed railway bill 
 submitted for their consideration, and that such bills 
 be severally dealt with by the said chairman and those 
 members respectively acting with him as other unop- 
 posed bills are to be dealt with. 
 
 3rd March, 1846. 
 
 25. Private B«7/s.— Ordered, That standing order. No. 110, 
 requiring that there be three clear days between the 
 first and second reading of a private bill, — and stand- 
 ing order, No. 134, requiring three clear days' notice 
 of a second reading to be given in the Private Bill 
 ©ffice,— and standing order, No. 139, requiring one 
 clear day's notice in the Private Bill Office of the day 
 proposed for the report of every private bill, and also 
 for the consideration of the report, — and standing 
 order, No. 123, requiring the reports on railway bills 
 to be discussed every Tuesday and 1'hursday,— and 
 standing order. No. 142, requiring one clear day's no- 
 tice of the third reading of a bill,— and standing order, 
 No. 124, prohibiting any private bill from passing 
 through two stages on the same day,— be suspended 
 with respect to all bills entitled to the privileges granted 
 by the resolutions of the house of the 7th day of July 
 last. . 
 
 That such bills may be road a second time on the 
 day following the first reading of such bills, 
 r r 5
 
 cccxlvi Appendix. 
 
 That tlie committees on such bills may report, and 
 such report may be considered, on the same day with 
 that on which the committee sits. 
 
 That such bills may be read a third lime on the fol- 
 lowing day. 
 
 5th March, 1846. 
 
 29. Railway Bills. — Paragraph 20 of the standing order, 
 No. 87, read as follows, — 
 " That in the case of a railway bill the committee report 
 specially — 
 
 Whether the calculations proved in evidence be- 
 fore the committee have satisfactorily established 
 that the revenue is likely to be sufficient to support 
 the annual charges of the maintenance of the rail- 
 way, and still allow pi-ofit to the projectors." 
 and repealed. 
 
 19th March, 1846. 
 
 154. Aqueducts, ^-c. — Ordered, That in case of bills for 
 making, maintaining, varying, extending or enlarging any 
 aqueduct, archway, bridge, weir, canal, cut, dock, ferry, har- 
 bour, navigation, pier, port, railway, reserA-oir, tunnel, turn- 
 pike road and waterwork, and for all other works and inclo- 
 sures on tidal lands within the ordinary spring tides, a general 
 plan showing the situation and approaches to the said aque- 
 duct, archway, harbour, &c., should be denoted upon a sheet 
 or sheets of the ordnance survey, when published, or else 
 upon maps of an equivalent scale, and extending ten miles 
 on each side ; together with enlarged plans and sections of 
 such parts of the works as are on the tidal lands within the 
 ordinary spring tides on a scale of not less than twenty feet 
 to an inch, with the dimensions figured thereon, shall, on 
 or before the 30th day of November, be deposited in the 
 Board of Admiralty. 
 
 Ordered that the said order be a standing order of this 
 House. 
 
 155. Harbours, ^c. — Ordered, That the promoters of all 
 bills for the formation or improvement of harbours, docks, 
 piers, railways, bridges, weirs, &c., and for all works and 
 inclosures on tidal lands within the ordinary spring tides, 
 and also of bills for bridges over or tunnels under navigable 
 rivers already inti-oduced this session, shall forthwith send 
 to the Board of Admiralty a copy of such parts of the plans, 
 sections and books of reference as they have deposited in 
 the office of any clerk of the peace or sheriff clerk on or
 
 Parliamentary Practice, cccxlvii 
 
 before the 30th day of November immediately preceding 
 this session of parliament as are on the tidal lands within 
 the ordinary spring tides. 
 
 II. Resolutions, &c. of Lords, (a) 
 First Report. 
 By the lords committees appointed a select committee to 
 consider of the mode in which the house shall deal with 
 the railway bills proposed to be submitted to the house 
 during the present session, and to whom leave was given 
 to report trom time to time to the house. 
 Ordered to report. 
 
 That the committee have met, and considered the matters 
 to them referred, and have come to the following resolu- 
 tions ; viz. 
 
 Resolved, That it is the opinion of this committee that 
 such portion of the standing order, No. 224, as requires 
 from the promoters of railway bills a deposit of one- 
 tenth of the amount subscribed, should be suspended 
 with respect to all such railway bills as shall commence 
 in the House of Lords during the present session : that 
 no such railway bill should be read a first time in this 
 house unless a deposit of one-twentieth jjart of the 
 amount subscribed shall have been made on or before 
 the 6th of February, and no such railway bill should 
 be read a third time until a further deposit of one twen- 
 tieth part of the amount subscribed shall in like manner 
 be made. 
 Resolved also, That it is the opinion of this committee 
 that this house should not receive any petition for a 
 railway bill after Monday the 23d of this instant Fe- 
 bruary, (t) 
 
 Second Report. 
 By the lords committees appointed a select committee to 
 consider the mode in which the house shall deal with 
 the railway bills proposed to be submitted to the house 
 during the present session; and to whom leave was 
 given to report from time to time to the house :— 
 Ordered to report, 
 
 That the committee have again met, and liavc further 
 
 (s) See further, Addenda. 
 
 (0 The above resolutions were subsequently adopted by the 
 house. See Minutes of ProceediDgs of the 6lh February, 1846, 
 pp. 46, 47.
 
 cccxlviii /Appendix. 
 
 considered the matters to them referred, and have come to 
 the following resohjtion ; viz. 
 
 Resolved, That it is the opinion of this committee that 
 the standing orders of this house with regard to railway bills 
 should, as respects railway bills commenced in this house 
 during the present session, he altered in the following par- 
 ticulars : 
 
 That standing order. No. 219, be altered in the following 
 particulars; viz., 
 
 That on the bill being reported to the house from the 
 committee on the bill, or at any time previously, 
 on the petition of the parties to such bill, or any 
 of them, the bill shall be referred to the standing 
 order committee, which shall inquire whether the 
 standing orders, the compliance with which is 
 directed to be proved before or reported bj'' the 
 standing order committee previously to the third 
 reading of the bill, have been complied with ; and 
 the committee shall report on the matters re- 
 ferred to them in the same manner as they are 
 directed to report on other matters referred to them 
 by the standing orders. 
 That five clear days' notice be given of such meeting 
 of the committee, and that it be proved to the 
 satisfaction of the committee that the standing 
 orders had been complied with five clear days 
 before such meeting of the committee. 
 That the standing order committee shall not meet to 
 consider the compliance with such of the standing 
 ordei-s as are directed to be proved before them, 
 until after the expiration of seven clear days from 
 the presentation of the petition if the bill relate to 
 England, or until after the expiration of ten clear 
 days if the bill relate to Scotland or Ireland. 
 That every petition complaining of a non-compliance 
 with such of the standing orders as are directed 
 to be proved before the standing order committee 
 subsequently to the first reading of the bill shall 
 be presented three clear daj's before the meeting 
 of the committee to consider such standing orders. 
 That standing order. No. 220, be altered in the following 
 particulars; viz.. 
 
 That the service of every application required to be 
 made to the owners or reputed owners, lessees or 
 reputed lessees, and occupiers, by the fourth para- 
 graph of the said standing order, may, unless a peti-
 
 Parliamentary Practice. cccxlix 
 
 tion complaining of the want of due sen'ice of such 
 application shall have been referred to the standing 
 order committee, be proved by the evidence of the 
 agent or solicitor for the bill, stating that he gave 
 directions for the service of such application in 
 the manner and within the time required by the 
 standing orders, and that he beheves that such 
 application was so served ; but in case the stand- 
 ing order committee shall not be satisfied with the 
 evidence of the agent or solicitor, the service of 
 such application shall be proved in the usual 
 manner. 
 That no bill commencing in this house, and em- 
 powering any company already constituted by act 
 of parliament to execute any work other than that 
 for which it was originally established, shall be 
 read a third time, unless the committee on stand- 
 ing orders shall have specially reported that the 
 requisitions contained in paragraph No. 5 of such 
 order have been complied with. 
 
 That standing order, No. 224, be altered in the following 
 particulars; viz,, 
 
 That as respects all railway bills which shall com- 
 mence in this house during the present session of 
 parliament, it shall be proved to the satisfaction of 
 the standing order committee that a sum equal to 
 one twentieth part of the amount subscribed has 
 been deposited, in the manner recjuired by the 
 said standing order, on or before the si.xth day of 
 February instant; and it shall likewise be proved 
 to the satisfaction of the said committee, before 
 the third reading of such bill, that a further sum 
 equal to one twentieth part of the amount sub- 
 scribed has been deposited in like manner. (/) 
 
 That standing order, No. 225, be altered in the following 
 particulars; viz.. 
 
 That it shall be sufficient if the proof required to be 
 given by the last-mentioned standing ordrr be 
 adduced before the standing order committee at 
 any time previous to the third reading of the bill. 
 
 That all the standing orders applicable to railway bills, 
 
 (0 In the House the following words were here added. " And 
 that the amendment made to the said st.inding order on llic MU 
 instant be further amended by substituting the word " wcouU 
 for the word " first."
 
 cccl Appendix. 
 
 except such of them or such part of them as are altered by 
 or inconsistent with the aforesaid standing order, shall apply 
 to the railway bills commenced in this house during the 
 present session of parliament, and to the proceedings in 
 such bills, (u) 
 
 Section X. 
 
 SUGGESTIONS DRAWN UP BY THE CHAIRMEN FOR 
 THE CONSIDERATION OF THE SELECT COM- 
 MITTEES ON RAILWAY GROUPS, SESSION 1846. 
 
 1. The attention of every committee should be directed to 
 
 the following resolution of the house : " That all select 
 committees on railway groups or bills be empowered to 
 refer (if they shall so think fit) to the chairman of ways 
 and means, together with the members ordered to pre- 
 pare and bring in each such bill, any unopposed rail- 
 way bill submitted for their consideration, and that such 
 bills be severally dealt with by the said chairman, and 
 those members respectively acting with him, as other 
 unopposed bills are to be dealt with." 
 
 2. If parties agree as to the order of precedence in which 
 
 other bills included in the group shall be taken, the 
 committee will adopt their agreement. 
 
 3. If parties do not agree, the committee will decide the 
 
 order of precedence without hearing counsel. 
 
 4. In this case such bills in each group as are not opposed 
 
 by competing lines will be first taken into consideration 
 in the order in which they have been read a second 
 time. 
 
 5. With respect to competing lines, the committee will sub- 
 
 divide if necessary the bills in each group, so as to dis- 
 tribute into separate classes the bills for such lines as 
 compete inter- se. 
 
 6. With regard to such separate classes and the bills in such 
 
 classes, the committee must exercise its discretion, ac- 
 
 (h) The above resolutions were subsequently adopted by the 
 house, and the standing orders altered accordingly. See Minutes 
 of Proceedings of Lords, 13 Feb. 1846. 
 
 By a subsequent report the committee recommended (among 
 other things) the repeal of the 2nd, 3rd and 4th sections of the 
 standing order No. 233, which was subsequently agreed to by 
 the house. See Minutes of Lords' Proceedings of Session 1846, 
 p. 241. As to new standing orders, dec, see Addenda. 
 
 I
 
 Parliamentary Practice. cccli 
 
 cording to the circumstances of the case, in determining 
 the order of precedence. 
 
 7. In the cases of bills for lines of railway competing inter 
 
 se, the following course adopted last session is proposed 
 to be continued: 
 Suppose a case of four competing bills : 
 No. 1. Counsel opens the case, and then produces evi- 
 dence. 
 Landowners and other opponents, and Nos. 2, 3 and 4 
 then cross-examine. 
 
 No. 1. Re-examines. 
 Landowners and other opponents, and then Nos. 2, 3 and 
 4 offer consecutively positive evidence in opposition to 
 No. 1, on the merits of his case. 
 No. 1. Cross-examines. 
 
 Landowners and other opponents, and then Nos. 2, 3 and 4 
 re-examine. 
 
 Same process with 2, 3 and 4 in rotation, and 4, 
 3, 2 and 1 reply. 
 Where the opposition of several distinct opposing parties 
 turns on the same points, it will be desirable to restrict 
 as far as possible the limits within which the riglit of 
 successive examinations and cross-examinations shall 
 be exercised. 
 
 8. In all cases the counsel, in opening the case, is to be 
 
 restricted to a statement of facts. The counsel for op- 
 ponents may either address the committee previously 
 to offering evidence, or afterwards, but not both. 
 
 9. The promoters of each bill shall be required, two clear 
 
 days before the day appointed for the first sitting of the 
 committee, to furnisli to the clerk of the connnittoe, for 
 the use of each member thereof, a particular printed 
 statement of the chief points, succinctly stated, on which 
 they rest their case. 
 
 10. The opponents of a bill shall be required to furnish at 
 
 the same time a like statement of the chief points on 
 which they rest their opposition. 
 
 11. The standing orders as to traffic having been rescinded, 
 
 no detailed evidence as to traffic shall in ordinary cases 
 be received either in support of or in opposition to a 
 bill, but the promoters of a bill sliall be required to 
 append to the foregoing statement a printed list of tlic 
 chiefcities or towns intended to be acconnnodated, with 
 their respective distances from llie proposed line, toge- 
 ther with the amount of the |)opuiatiou of such cities 
 or towns, taken from the returns of the last general
 
 ccclii Appendix. 
 
 census. It will of course be competent to the com- 
 mittee, if they shall see sufficient cause, to require fur- 
 ther evidence as to traffic. 
 
 12. With a view to place some reasonable limit on the 
 
 amount of engineering evidence, parties shall be re- 
 quired to furnish the committee with the names of the 
 engineering witnesses whom they propose to call ; and 
 it is recommended that committees should place some 
 limit on the number of engineering witnesses to be ex- 
 amined with reference to the same portion of any pro- 
 posed line. 
 
 13. In the case of amalgamation bills, the promoters of any 
 such bill shall be required to furnish the committee 
 with a printed statement of all the pecuniary claims 
 and liabilities to which any company included in the 
 proposed amalgamation is subject by any previous act 
 of parliament.
 
 ( cccliii ) 
 
 APPENDIX IV. 
 
 RAILWAY FORMS. 
 
 Parliamentary Contract. 
 Subscribers' Agreement. 
 Form of Application to Owners. 
 
 PARLIAMENTARY CONTRACT. 
 This Indenture, made the day of , one thou- 
 sand eight hundred and , between the several persons 
 
 whose names and seals are respectively subscribed and 
 affixed in the schedule hereunder written or hereunto an- 
 nexed, of the first part, and and (trustees named 
 
 and appointed for the purpose of enforcing and giving effect 
 to the covenants herein contained), of the second part; 
 WITNESSETH, that eacli of them the said several persons 
 parties hereto of the first part, together with tiie several 
 other persons who have severally subscribed or may Iicre- 
 after subscribe their names, and who have severally afiixed 
 or may hereafter affix their seals to a certain other inden- 
 ture of the same tenor, purport and effect, and bearing even 
 date herewith, in which said indenture reference is made to 
 this present indenture, doth hereby for liimscif and herself, 
 his and her respective heirs, executors, administrators and 
 assigns, but to the extent only of the sum of money set 
 opposite to his or her name in the said schedule liereto, 
 and not further or otherwise, covenant, promise and agree 
 
 with and to the said and , their executors and 
 
 administrators, in manner following, (that is to say,) tiiat 
 each of them the said several persons, parties hereto of the 
 first part, hath subscribed and doth hereby subscribe tlie sum 
 set opposite to his or her name in the said schedule licreto, 
 for the purpose of making and establishing a railway, to bo 
 
 called by the name of the railway, or by such otlier 
 
 name or names as may at any time hereafter be ad()|)tcd by 
 the provisional directors for the time being, engaged in pro- 
 moting the establishment of such railway; the siiid rail- 
 way to commence at or near , in the j)arisli of -, 
 
 in the county of , and to terminate at «r near , in 
 
 the parish of , in the county of , with such branch
 
 cccliv Appendix. 
 
 or branches from the said main railway to any towns, places, 
 railways or canals, by such course or route respectively as 
 may hereafter by such, directors be deemed necessary or 
 desirable, together with proper approaches, stations, ware- 
 houses, roads, wharfs, quays and other works, erections and 
 conveniences thereunto respectively appertaining, the same 
 respectively to be made, constructed, established, maintained 
 and conducted, in such manner as shall be provided for by 
 an act of parliament to be applied for in the next session of 
 parliament; And the said parties hereto of the first part 
 agree in appointing, and so far as in them respectively 
 lies do hereby appoint to be the provisional directors for 
 prosecuting the said intended undertaking, and do give to 
 such provisional directors fresh power from time to time 
 to add to or to reduce their number, and to fill up vacancies 
 which may be occasioned by death, resignation or other- 
 wise, and do hereby authorize and empower the provisional 
 directors for the time being to apply for and endeavour to 
 obtain in the next session of parliament an act or acts for 
 all or any of the purposes aforesaid, and to insert in such 
 act or acts, in addition to the usual proper clauses, all such 
 special clauses and provisions as the provisional directors 
 may consider necessary or desirable, with full power and 
 authority to confine the application to a portion only of 
 the said undertaking, omitting the remaining part thereof: 
 And the said parties hereto of the first part do hereby au- 
 thorize and empower the provisional directors for the time 
 being to fix upon and from time to time to alter and vary 
 as well the site or spot at Avhich the said intended railway 
 shall conmience, as also the site or spot at which it shall 
 terminate, and also the intermediate course, route or line 
 thereof, and the parishes, townships and places through 
 which the same shall pass : And also from time to time to 
 determine what branches, if any, shall be made therefrom, 
 and to fix upon and from time to time to alter and vary the 
 course or line of such branches, or any of them, and also 
 to abandon and relinquish or to abstain from making or com- 
 pleting any such branch or branches, and also to determine 
 with what railway or railways a junction shall be made, and 
 from time to time to alter and vary the same ; and also to 
 fix upon and from time to time to alter and vary the place 
 or places where the said intended railway or any branch 
 therefrom may be or may have been intended to form a 
 junction with any other railway or railways, and to arrange 
 the terms upon which any such junction may be made, and 
 also the terms upon which the construction of any portion 
 of the line or works may be undertaken jointly with any
 
 Parliamentary Contract. ccclv 
 
 other company, and also to fix upon and from time to time 
 to alter and vary the extent and situation of the several sta- 
 tions and other works connected with the said intended 
 railway, and with full power and authority for the provi- 
 sional directors to permit any other company or companies 
 to hold shares in the said intended undertaking, and to 
 enter into any arrangement for the amalgamation either 
 wholly or partially of the said undertaking with any other 
 undertaking or undertakings, and to enter into and make 
 any agreement, contract or arrangement with any other 
 company or companies, person or persons whomsoever, for 
 giving an interest in the said undertaking and a control or 
 direction in the management thereof to such company or 
 companies, person or persons, to such extent, on such terms, 
 and subject to such stipulations, provisions and agreements 
 as such provisional directors may think fit: And this in- 
 denture FURTHER WITNESSETH, that eacli and every of 
 them the said several persons parties hereto of the first 
 part, doth hereby for himself and herself, and his and her 
 heirs, executors and administrators, and as concerning him- 
 self and herself only, and his and her own acts, deeds and 
 
 defaults respectively, covenant with the said and 
 
 , their executors and administrators, that each and 
 
 every of them the said several persons parties hereto of tlie 
 first part respectively, his or her heirs, executors or admi- 
 nistrators, shall and will well and truly pay or cause to be 
 paid the amount subscribed by each of them the said seve- 
 ral persons, or such part thereof as shall not have been paid 
 by them respectively at tlie date of their respective signa- 
 tures to these presents, in such sums and at such place or 
 places, and at such time or times as shall be recpiired by 
 the said directors, until an act or acts of parliament shall 
 have been obtained as aforesaid, and after such act or acts 
 of parliament shall have been obtained, as the directors or 
 others authorized by the said act or acts shall lawfully di- 
 rect or appoint. In witness, &c. 
 
 SCHEDULE ABOVE REFEKUED TO. 
 
 Chrisiianand 
 Surname of 
 Subscriber. 
 
 Descrip- 
 tion. 
 
 Place of 
 Abode. 
 
 Amount 
 
 ors»ii- 
 
 Rcripiion. 
 
 Amoiinl 
 paiil u|>. 
 
 lliual 
 SiKoalure. 
 
 Seal 
 
 Dair of 
 SlKnllutr. 
 
 Niitii- of 
 
 UllM>». 
 
 
 
 
 

 
 ccclvi Appendix. 
 
 SUBSCRIBERS' AGREEMENT. 
 
 This Indenture, made the day of January, a.d. one 
 
 thousand eight hundred and forty , Between [members 
 
 of the committee^ of the first part, the several other persons 
 who, together with the said several persons parties hereto 
 of the first part, have hereunto respectively subscribed their 
 names and affixed their seals in the schedule hereunder 
 
 written or hereunto annexed, of the second part, and 
 
 and (trustees nominated and appointed for the purpose 
 
 of giving effect to the covenants hereinafter contained), of the 
 third part, Witnesseth that the several parties hereto of the 
 first and second parts do hereby acknowledge themselves to 
 be subscribers to an undertaking for constructing, establishing 
 and maintaining a certain line of railway, with all proper ap- 
 approaches, depots, stations, quays, wharfs, landing places, 
 works and conveniences connected therewith : (that is to sa)',) 
 
 a line of railway, to commence at or near , in the parish 
 
 of , in the county of , and to terminate at the town 
 
 and parish of , in the county of : And further, 
 
 that the said several persons, parties hereto of the second 
 part, do hereby recognize and acknowledge the said several 
 persons, parties hereto of the first part, and the survivors or 
 survivor of them, and such other persons as shall be from 
 time to time appointed under the powers and provisions for 
 that purpose hereinafter contained as provisional directors 
 for managing and conducting the affairs relating to the same 
 undertaking until an act or acts of parliament shall be ob- 
 tained in that behalf: And this Indenture further wit- 
 nesseth, that in furtherance of the said undertaking, and 
 in addition to the parliamentary contracts respectively bear- 
 ing even date with these presents, under the respective hands 
 and seals of certain of the said several persons parties hereto 
 as aforesaid, and which have been respectively executed, 
 or are intended to be forthwith executed, for the purpose of 
 obtaining the sanction of parliament to the establishment 
 of the aforesaid line of railway and works hereby con- 
 templated, each of them the said several persons, parties 
 hereto of the first and second parts, so far as relates to 
 the acts and deeds of himself and herself respectively, and 
 his and her respective heirs, executors and administrators,
 
 Subscribers' Agreement. ccclvii 
 
 but not further or otherwise, doth hereby for himself and 
 herself respectively, and his and her respective heirs exe- 
 cutors and administrators, covenant with the said 
 
 their executors and administrators, that each of them the 
 said several persons parties hereto of the first and second 
 parts hath subscribed the sum set opposite to their respec- 
 tive names in the schedule hereto for makinj^ and establish- 
 ing the line of railway and works hereinbefore mentioned, 
 or such part thereof as the said directors shall from time to 
 time fix upon and determine; and that each of them the 
 said several persons aforesaid, and their several and respective 
 executors and administrators, shall and will faithfully con- 
 form to and abide by the several stipulations, rules and 
 regulations hereinafter mentioned and set forth, until an act 
 or acts of parliament for the management and conduct of the 
 said undertaking, shall be obtained ; namely 
 
 That for the purposes of the said undertaking, a sum not 
 
 exceeding /., divided into shares of /. each, shall in 
 
 the first instance be the capital of the company, but that the 
 provisional directors for the time being shall have power 
 from time to time, if they shall think proper so to do, to in- 
 increase such capital or diminish the same, or the capital for 
 the time being of the said undertaking, and to vary the 
 amount and number of shares into which the same is or «hal! 
 be divided, and such additional capital shall be raised in such 
 shares, and shall be apportioned and allotted in such way and 
 manner as the said provisional directors shall think fit. 
 
 That the said provisional directors shall not be bound to 
 recognize the transfer of any share or shares in the said under- 
 taking, except by the authority of an act or acts of parliament 
 for authorizing the said undertaking, but may at tlieir discre- 
 tion, and upon such terms and conditions as they may in 
 each case think fit, elect to recognize any transfer which 
 but for this provision could have been lawfully made. 
 
 That each of the said several parties hereto of the first 
 and second parts, being subscribers to the said undertaking, 
 shall pay a deposit of per share at the time of exe- 
 cuting these presents. 
 
 That each of the said parties hereto of the first and second 
 parts also shall and will, concurrently with the execution 
 
 of these presents, or within days after notice for that 
 
 purpose in writing, to be left at or sent by jwist to the place 
 of residence or address set opposite to their resjiective names 
 in the schedule Iiereto, duly sign, seal and deliver, or other- 
 wise duly execute, any one or more parliamentary undor- 
 takino-s or subscription contracts, and all other such deeds
 
 ccclviii Appendix. 
 
 or instruments which shall for the time being be required 
 for the due compliance with the standing orders of either 
 house of parliament, or which the said provisional directors 
 may deem necessary or proper for the purposes of the said 
 undertaking, and such deeds and instruments shall be pre- 
 pared in such form as the said directors shall deem proper 
 or requisite. 
 
 That each of the said several persons parties to these 
 presents of tlie first and second parts also shall and will, 
 at the same time and at any future time, as the said di- 
 rectors shall call for or require the same to be paid, pay to 
 such person as the said directors shall appoint to receive the 
 same, such further rateable sum per share (if an\') in ad- 
 dition to the present deposit, as shall be necessary in order 
 to make up any proportion of the subscribed capital which 
 shall for the time being be required by the standing orders 
 of the houses of parliament respectively, or either of them, 
 to be deposited and paid up, and shall and will at any future 
 time also duly sign, seal and deliver or otherwise execute 
 any further or other parliamentary undertakings or sub- 
 scription contracts, or other instruments rendered necessary 
 by any renewed application or applications to parliament in 
 a subsequent session, under the powers for that purpose 
 herein contained, and pay such further proportion of the 
 respective amounts subscribed by them as may be called for 
 by the said directors, or as may be required by the standing 
 orders of either of the houses of parliament to be paid upon 
 any such renewed application. 
 
 That in case any of the said several persons parties hereto 
 of the first and second parts, shall neglect or refuse to comply 
 with the provisions hereinbefore contained for the execu- 
 tion of parliamentary undertakings, subscription contracts 
 or other deeds and instruments, or the payment of the 
 amounts per share which he, she or they shall be liable to 
 or be called upon to pay according to the stipulations afore- 
 said, the said directors shall be at liberty, if they in their ab- 
 solute discretion shall think fit, but not otherwise, to declare 
 the shares or share of such defaulting party to be forfeited, 
 and to determine the interest and liability of such parties re- 
 spectively in and to the said company and undertaking, and to 
 receive and accept as a member of the said company or under- 
 taking, in the place and stead of any party so making default 
 as aforesaid, the holder for the time being (if any) of the 
 printed scrip or certificate issued in respect of any shares or 
 share in the said undertaking, subscribed for by any party 
 so making default as aforesaid, such scripholder duly exe-
 
 Subscribers' Agreement. ccclix 
 
 cuting these presents, or some supplementary or further 
 subscribers' agreement to the like effect, and also the parlia- 
 mentary undertakings or subscription contracts, and paying 
 the rateable proportion of the amount of such shares or 
 share which shall be payable in respect thereof, the said 
 company accounting to such party for the deposit paid in 
 respect of the same shares or share by the party so makin"- 
 default as aforesaid, or the said directors shall be at liberty, 
 if they shall think fit, to declare the same shares or share, 
 and the deposit paid thereon, absolutely forfeited to the said 
 company, and to reallot the shares or share so forfeited to 
 such other person or persons applying for the same as the 
 said directors shall choose. 
 
 That shall be the chairman, and the deputy 
 
 chairman of the said company. 
 
 That the majority of members present at any meeting or 
 board of the said provisional directors (such meeting con- 
 sisting of not fewer than members,) shall have power, 
 
 on the resignation or retirement of the chairman or deputy 
 chairman for the time being, to appoint a chairman or de- 
 puty chairman in room of the chairman or deputy chairman 
 resigning or retiring as aforesaid. 
 
 Tliat at any board or meeting of the said provisional di- 
 rectors, the chairman or deputy chairman for tlic time 
 being, or in their absence, some one of the provisional di- 
 rectors, to be chosen by the majority of members present at 
 such board or meeting, shall preside. 
 
 That the majority of members at any meeting or board 
 of the said provisional directors (such meeting consisting of 
 
 not fewer than members), shall bind all tlie members, 
 
 whether present or absent, and the chairman, or any other 
 member presiding at any meeting of the said directors, shall 
 Lave a casting vote in addition to his vote. 
 
 That the said board of directors shall have power, from 
 time to time, to add to their number from among the sub- 
 scribers to the undertaking, holding each shares at 
 
 least; and to accept the resignation of any director; and to 
 supply any vacancies that may occur in the board by death, 
 resignation, or incapacity ; and also, in their discretion, to 
 remove any member of the said board and to reduce their 
 number, if such course shall be desirable ; and also to ap- 
 point from its members any sub-committee or sub-coinniit- 
 tees with such powers and authorities and subject to siirli 
 regulations as the said directors shall think i)roper, pnni.lod 
 that such powers and regulations are not mcoiisistfiH witli 
 the provisions herein contained.
 
 ccclx appendix. 
 
 That the said directors sliall have full power from time to 
 time to make and establish, and also to revoke or varj' all 
 such rules, orders and regulations as they may think neces- 
 sary for their own government, and for the management of, 
 or otherwise in connection with, the said undertaking. 
 
 That the said directors, and every board or meeting 
 thereof constituted as aforesaid, shall represent and be com- 
 petent to act on behalf of and to bind all the subscribers to 
 the said undertaking, and their respective executors, admi- 
 nistrators and assigns, and shall have full power to carry 
 into effect the said undertaking, in such manner as they 
 may deem expedient, with any such variations, alterations, 
 modifications, extensions and branches as they may think 
 necessary or expedient, and generally to regulate and ma- 
 nage the affairs of the said company and all matters con- 
 nected with the said undertaking, and particularly to cause 
 all requisite surveys and estimates to be made, or to adopt 
 any surveys or estimates already made, and also '^so far as 
 they lawfully can or may,) to make such arrangements 
 with any other railway, tramroad, canal or other companies 
 or proprietors and others, either permanent or temporary, 
 for the amalgamation or consolidation of the company 
 hereby established wholly or partially, with any such other 
 company or undei'taking, or for the regulation or mutual 
 accommodation of the traffic to pass along the railway 
 hereby proposed to be made, and any other railway, tram- 
 road or canal, or for the purchase or taking on lease from 
 such other companies or parties, of their railroad, tramroad, 
 canal or other works or any part thereof, or any interest in 
 or right over the same, or for the sale or granting a lease of 
 the proposed undertaking to any such other companies or 
 parties, or giving to them any interest in or rights over the 
 same, as the said directors may deem fit and expedient. 
 
 That the said directors shall also have power (so far as 
 they lawfully can or may) to enter into any contracts with 
 landowners and others for the taking or purchasing or 
 acquiring any interest in any lands, buildings, or other 
 hereditaments of freehold, leasehold, copyhold or other 
 tenure, or any other property which may probably be 
 required for the purposes of the undertaking or which may 
 be deemed expedient by them to be taken, purchased or 
 acquired for any purpose connected therewith, in considera- 
 tion of such sum of money or such )-early rents, and gene- 
 rally for such considerations and upon such terms as the 
 said directors shall think fit, but so that every such contract 
 shall be entered into conditionally upon an act or acts for 
 establishing the said company being obtained.
 
 Subscribers' Agreement. ccclxi 
 
 That the said directors shall have full power from time to 
 time to fix upon and determine, and to alter and vary the 
 sites or spots at which the said railway and any branches or 
 extensions thereof shall commence and terminate, and the 
 intermediate courses, routes or lines thereof, and to deter- 
 mine what extensions or branch railways shall be made 
 therefrom and connected therewith, and to abandon, vary 
 or postpone any such branches or extensions and adopt any 
 other branches or extensions, and shall and may fix upon 
 and from time to time alter and vary tlie extent and situa- 
 tion of the warehouses, stations, depots, bridges, approaches 
 buildings and other works connected with the said under- 
 taking. 
 
 That the said directors shall have full power and they are 
 hereby authorized to make application to parliament in the 
 next or any subsequent session for an act or acts for autho- 
 rizing the construction of the said intended railway and any 
 branches or extensions therefrom, and for all or any of the 
 purposes aforesaid, and for establishing and regulating the 
 said undertaking and incorporating the subscribers thereto; 
 or if the said directors shall think fit, to confine the applica- 
 tion to any portion of the said undertaking, and in such 
 case or in case any act to be obtained in the ensuing session 
 shall authorize the constructiou of a part only of the said 
 intended undertaking, to make or support in any subsequent 
 session such further application to parliament as tl)e said 
 directors may deem advisable, for the construction of the 
 remainder of the said undertaking or any part or parts 
 thereof, with additions or branches and extensions thereto, 
 and also to introduce or to consent to the introduction of in 
 any act or acts of parliament wliich may be applied for as 
 aforesaid, in addition to the usual clauses and provisions, 
 such other clauses and provisions as to the said directors 
 may seem proper or may be required by parliament, and 
 ■with powers to demise or sell the said undertaking or any 
 part thereof, or any rights or interests therein, to any otlier 
 company or parties; and also from time to time to take 
 such proceedings in parliament or elsewlierc, as they may 
 deem expedient for tlic j)urpose of supporting, opposing, or 
 obtaining an alteration in the provisions of any l)ill or bills 
 which may be brought forward for the establishment of any- 
 railway or other works or undertaking wliich may, in thuir 
 judgment, affect the interests of the said undertaking hereby 
 contemplated. 
 
 That the said directors shall have full power to permit 
 any other company, or the promoters of any other under-
 
 ccclxii Appendix. 
 
 taking, to subscribe for and bold shares in the capital of the 
 company hereby established, upon such terms and with such 
 powers as the said directors shall deem expedient; and it 
 shall be lawful for the said directors, out of the fimds of the 
 company, to subscribe to or hold shares in the capital of any 
 other undertaking; and the said directors shall have full 
 power to consent to the insertion in any act or acts of par- 
 liament, whether applied for on behalf of the company here- 
 by established or in any other act or acts, of any clauses, 
 powers and provisions for giving effect to, facihtating or 
 confirming any such agreements or arrangements. 
 
 That the said directors shall have full power to engage, 
 retain and appoint, and also suspend or remove, and to 
 reappoint and employ bankers, solicitors, engineers, sur- 
 veyors, clerks, agents, servants and others, and to pay and 
 allow all such salaries and recompenses as the said directors 
 shall think right. 
 
 That the said directors shall have full power and autho- 
 nty to apply any part of the moneys which shall be paid 
 by way of deposit as herein mentioned, in making such 
 deposits or investments of paid-up capital as are or shall 
 be required by the standing orders of either house of par- 
 liament, or in otherwise compljing therewith ; and also in 
 or towards the payment as well of all salaries, recompenses 
 and engagements as aforesaid, as of the expenses of solicit- 
 ing an act or acts of parliament, or opposing any bill or bills, 
 as aforesaid, and all other costs, charges and expenses inci- 
 dental to the said imdertaking or which such du-ectors or 
 any person or persons on their behalf, or whose acts have 
 been or ma}- be adopted or recognised by them, have been 
 or may be put to with reference to the pui-poses of the im- 
 dertaking in any respect, and whether such act or acts of 
 parliament shall or shall not be obtained. 
 
 That the said directors shall cause true and correct ac- 
 counts to be kept of all moneys which may be received by 
 them, or for their use or on their account, on behalf of the 
 said undertaking, and also of all monies expended on ac- 
 count thereof 
 
 That the said directors shall be empowered to invest such 
 deposits as may be received by them from the subscribers 
 on account of the respective amounts subscribed by them, 
 or any part thereof, in such manner and at such rate of 
 interest, and generally upon such terms and conditions and 
 at such times as they in their discretion shall tliink expedient. 
 
 That the said directors shall be accoimtable for all income 
 and profits which may arise from such investment, but shall 
 not be answerable for any loss consequent thereon.
 
 Subscribers' Agreement. ccclxiii 
 
 That in any act or acts of parliament to be obtained as 
 aforesaid, it shall be provided that no call shall be made 
 upon the subscribers to the said undertaking or any of them, 
 
 ■which shall exceed the sum of pounds per share at any 
 
 one time ; and also, that no more than calls shall be 
 
 made in any one year, and that there shall be an interval of 
 
 months between every two calls ; and also, that interest 
 
 may be allowed, if the directors acting in the execution of 
 the said act shall think fit, at the rate of four pounds per 
 cent, upon the amount paid up by each subscriber in respect 
 of his subsci-iption, to be calculated from the time when 
 the intended line of railway shall be opened to the public. 
 
 That, whether any act or acts of parliament shall or shall 
 not be applied for or obtained for establishing the proposed 
 undertaking, the said directors shall be indemnified against 
 and in respect of all contracts and deeds whatsoever entered 
 into, made and done by them in pursuance of the powers 
 and provisions herein contained, and all losses, costs, charges 
 and expenses which they may incur, sustain or be put unto 
 in the execution of the ti-usts, powers and autliorities com- 
 mitted to them by these presents ; such costs, charges, losses 
 and expenses to be respectively apportioned, assessed, paid 
 and ma'de good among and upon by the several subscribers 
 • and their respective heirs, executors and administrators, 
 rateably according to the amount subscribed by them re- 
 spectivelv; and the said directors are hereby also autho- 
 rized and empowered to retain to and reimburse themselves 
 respectively, out of the funds of the said undertaking, all 
 damages, losses, costs, charges or expenses wliich tliey re- 
 spectively shall or may incur, sustain or be put unto as such 
 directors as aforesaid. 
 
 That the said directors rnay, if they think proper, from 
 time to time call any general meeting or meetings of tlie 
 subscribers to the said undertaking for any purposes con- 
 nected therewith. 
 
 That every such general meetmg shall be called by ad- 
 vertisement, to be inserted at least three times in not less 
 
 than three of the principal newspapers published in , 
 
 twenty-one days previous to such meeting, and such adver- 
 tisement shall specify the object, the time and place of 
 meeting, and the subjects to be discussed thereat. 
 
 That the vote of a majority of the subscribers present at 
 such meeting, provided such meeting shdl consist of not 
 
 less than — ^ persons holding in the aggregate sliarcs 
 
 in the said company or undertaking, shall bind the miiiorily 
 and all absent shareholders. 
 
 Q«2
 
 ccclxiv 
 
 Appendix. 
 
 In witness whereof the several parties hereto of the third 
 part have hereunto set their hands and seals the day and 
 year first above written, and the parties hereto of the first 
 and second parts have set their hands and seals in the 
 schedule hereto on the several dates set opposite to their 
 respective signatures. 
 
 THE SCHEDULE REFERRED TO. 
 
 Christian and 
 
 Surname of 
 
 Subscribers at 
 
 length. 
 
 Place 
 
 of 
 
 Abode. 
 
 No. of 
 Shares, 
 
 Amount 
 of Sub- 
 scription. 
 
 *^S" feature of 
 
 Date of 
 
 Signature. 
 
 Witnessei 
 
 Names, 
 
 FORM OF APPLICATION TO OWNERS, &c. 
 
 {^Referred to in Stajidirig Order 17 of Commons and 220 of 
 Lords. — (See ante, p. cclv.)] 
 No. 
 
 Sir, 
 
 We beg to infonn you, that application is intended 
 to be made to parliament in the ensuing session for " An 
 Act" iherc iiisert the title of the act], and that the property 
 mentioned in the annexed schedule, or some part thereof, 
 in which we understand you are interested as therein stated, 
 will be required for the purposes of the said undertaking, 
 according to the line thereof as at present laid out, or may 
 be required to be taken under the usual powers of deviation 
 to the extent of yards on either side of the said line 
 
 which will be applied for in the said act, and will be passed 
 through in the manner mentioned in such scliedule. 
 
 We also beg to inform you, that a plan and section of the 
 said undertaking, with a book of reference thereto, has been 
 or will be deposited with the several clerks of the peace or 
 sheriff clerks of the counties of [specifi/ the counties in ichich 
 the property is situate], on or before the 30tli daj- of No- 
 vember, and that copies of so much of the said plan and 
 section as relates to the parish or royal burgh (a) in which 
 
 (a) These words " or royal burgh" are not in the notice given 
 in the Standing Order of the Commons.
 
 Notice to Owners, ^-c. ccclxv 
 
 your property is situate, with a book of reference thereto, 
 has been or will be deposited for public inspection with the 
 clerk of the said parish, schoolmaster of the parish, town 
 clerk of the royal burgh, or the clerk of the union within 
 which such parish is included [as the case may 6e], on or 
 before the 31st day of December instant, on which plans 
 your property is designated by the numbers set forth in the 
 annexed schedule. 
 
 As we are required to report to parliament whether you 
 assent to or dissent from the proposed undertaking, or whe- 
 ther you are neuter in respect thereto, you will oblige us by 
 wiiting your answer of assent, dissent, or neutrality, in the 
 form left herewith, and returning the same to us with your 
 signature on or before the day of 
 
 next ; and if there should be any error or misdescription in 
 the annexed schedule, we shall feel obliged by your inform- 
 ing us thereof, at your earliest convenience, that we may 
 correct the same without delay. 
 
 We are. Sir, 
 
 Your most obedient Servants, 
 
 To 
 
 SCHEDULE referred to in the foregoing Notice, and which is intended to 
 show the Property therein alluded to, and the Manner in which the Line 
 of the deposited Section will affect the same. 
 
 Parish. 
 
 Number 
 on Plans. 
 
 Descrip- 
 tion, 
 
 Occu- 
 pier. 
 
 Description of the 
 Section of the Line 
 deposited, and the 
 greatest Height of 
 Umbaukmeni and 
 Depth of Cutting. 
 
 Parish, 
 
 ■ztaz 
 
 :s2 
 
 Number 
 on Plans, 
 
 Descrip- 
 tion. 
 
 Lessee. 
 
 Occu- 
 pier.
 
 ( ccclxvi ) 
 
 APPENDIX V. 
 
 FUNCTIONS, &c. OF BOARD OF TRADE IN REGARD 
 OF RAILWAY BILLS BEFORE PARLIAMENT. 
 
 The nature of these functions, &c., may be best collected 
 from the consideration of the following portion of the Mi- 
 nute of the Board of Trade of the 10th July, 1845, relative 
 to the constitution of the Railway Department of that board, 
 and the rules for conducting railway business. 
 
 I. My Lords are of opinion that the distinct board 
 constituted by the minute of 6th August, 1844, should be 
 discontinued ; and that all railway business should hereafter 
 be transacted by the Lords of the Committee of Pri\^ 
 Council for Trade, in the same manner as the ordinary 
 business of this committee. 
 
 II. All such railway business, however, shall be trans- 
 acted by proceedings distinct from the ordinary business of 
 this committee. The despatch of railway business shall be 
 conducted by separate written minutes ; and the directions 
 and decisions of the Lords of the Committee shall be carried 
 into effect by the several officers of the railway department. 
 
 III. Reports will not hereafter be prepared for parlia- 
 ment, conveying the opinions of the Lords of this com- 
 mittee on the merits of any railway project, or on the 
 comparative merits of competing schemes. 
 
 IV. But in order that my Lords, with a view to guarding 
 the public interest, may have at all times an accurate know- 
 ledge of the objects of the various railway schemes, and of 
 the extent of the powers which the promoters desire to ob- 
 tain, my Lords direct that the proper steps should be taken 
 for submitting to the two houses of parliament the necessity 
 of adopting resolutions requiring the promoters of the va- 
 rious schemes to deposit as heretofore, at the Board of 
 Trade, a copy of the plans, sections, &c. It would also be 
 expedient that they should be required to deposit, concur- 
 rently \vith their plans and sections, a sketch of the proposed
 
 Functions, ^c. of Board of Trade, ccclxvii 
 
 lines, on an ordnance map of England, or on a scale equal 
 tosuch ordnance map, and also a written statement con- 
 taming a description of the railway, its course, its advan- 
 tages, its proposed fares and charges, and the principal 
 provisions of the hill which they intend to introduce. 
 
 It would further be desirable that the promoters should 
 deposit, as heretofore, with the Board of Trade, a copy of 
 the bill, as well as of such amendments as may be made 
 during its progress. 
 
 V. If upon examination of any railway bill it should 
 seem expedient to the Lords of this committee to draw the 
 attention of parUament to its provisions, or to circumstances 
 connected with it, the Lords, after the commencement of 
 the session, and from time to time as they may see fit, will 
 direct a report to be prepared accordingly. Such report 
 shall have reference to the following subjects : — 
 
 1. All questions of pubUc safety. 
 
 2. All departures from the ordinary usage of railway 
 legislation, where such usage has been sufficiently esta- 
 blished. 
 
 3. All provisions of magnitude which may be novel 
 in their principle, or may involve extended considera- 
 tion of public policy. For example: amalgamations 
 and agreements between separate companies ; exten- 
 sions of capital ; powers enabling railway companies to 
 pursue purposes different in kind from those for which 
 they were incorjiorated ; modifications of the general 
 law ; also fares and charges ; and generally all points 
 connected with the bills to which my Lords may think 
 it right on public grounds to draw the attention of par- 
 liament. Such report shall be signed by the president 
 or vice-president of this committee ; but it shall in no 
 case pronounce an opinion on the actual or compa- 
 rative merits of any railway scheme. 
 
 VI. My Lords direct that the annual report of the 
 officers of the railway department to the Lords of the Com- 
 mittee of Privy Council for Trade shall be laid, as hereto- 
 fore, on the table of both houses of parUament 
 
 The rules which my Lords have now laid down for the 
 transaction of railway business will be subject to reconsi- 
 deration hereafter, if, from further change of circumstances, 
 or otherwise, they should be found inapplicable or incon- 
 venient.
 
 ( ccclxviii ) 
 
 APPENDIX VI. 
 
 MANUSCRIPT CASES, &c. 
 
 Rasinch v. Lambert, N. P. Feb. 22, 1841, coram, 
 Lord Abinger, C. B. 
 
 This was an action brouglit by the plaintiff, a civil en- 
 gineer, to recover for professional services against the de- 
 fendant as one of the provisional committee of a pro- 
 jected railway got up in opposition to a line then before 
 parliament. The defendant's name, it appeared, had 
 been published as one of the provisional directors, and he 
 had once been seen at the company's committee-room. It 
 was attempted to be shown on the defendant's part that 
 the opposition Avas not bona fide, but a mere experiment by 
 one Peutlaud, who had induced the defendant and others 
 to lend their names, and had employed the plaintiff' with- 
 out any authority from the members of the provisional 
 committee. 
 
 Lord Abinger told the jurj' that the question was, whe- 
 ther the defendant, by allowing his name to go forth as 
 one of the committee, had not induced the plaintiff to 
 give his services, and thereby rendered himself liable. If 
 Pentland Avas employed by the committee to oppose the 
 bill, he might retain the plaintiff on their credit, if his 
 services were necessary. A verdict passed for the plaintiff. 
 
 Fignoles v. Lefroy, Liverpool, August 30, 1841. 
 
 This was an action by the plaintiff", a civil engineer, to 
 recover for professional services rendered to a projected 
 railway company. The defendant, it appeared, had 
 been a member of the provisional board, but had subse- 
 quently declined to take any shares in the company. 
 The judge left it to tlie jury to say whether the work was 
 done on the credit of the defendant, and how long the 
 plaintiff continued to give his services on such credit. 
 Verdict for the plaintiff.
 
 Unreported Cases. ccclx 
 
 Stephenson v. Rudge—coxnm Tindal, C. J. 
 This was an action brought by the plaintiflF, who had 
 acted as clerk of a provisional company, against the de- 
 fendant, who had been a provisional director of such 
 company, to recover arrears of salary. The plaintift', it 
 appeared, had been employed in the first instance not by 
 the provisional directors but by a third party, who had 
 got up the company, and, :n fact, had prevailed with the 
 defendant to lend his name to the undertaking. The 
 main question made at the trial was whether there liad 
 been any authority, expressly or impliedly, given by the 
 defendant to such third party to employ the plaintiff. 
 The defendant had a verdict, which the Court of Common 
 Pleas subsequently refused to disturb. 
 
 Beetham v. Cook and others, N. P., coram Lord 
 Denman, C. J., December 5, 1840. 
 
 This was an action for work and labour, &c. brought 
 against five of the directors of the City Railway Com- 
 pany, an undertaking which eventually failed, by a per- 
 son who had acted as their solicitor. The grounds of 
 defence were various, that the defendant had agreed, m 
 case of the bill failing, that he was only to be paid costs 
 out of pocket ; that he was to be paid out of the deposits 
 and funds of the company ; that the plaintiff's services 
 were useless in consequence of his mismanagement ; and, 
 lastly, that the plaintiff was a partner. In summing up, 
 Lord Denman, C. J., observecl, that though, where per- 
 sons acted as directors, a little evidence would be suffi- 
 cient to show that they were liable to persons employed 
 who acted on the credit of their names, still, as in the 
 present case, the plaintiff had, with the engineer and 
 surveyor, called into existence the very directors whom 
 he was suing, this made it more probable that some spe- 
 cial agreement existed between the parties. The plain- 
 tiff eventually had a verdict; but a new trial was 
 granted. 
 
 Simon V. Fector and others, N. P. coram Tindal, C. J., 
 February, 1842. 
 
 This was an action against three parties as jjrovisional 
 directors of a projected railway company for certain ser- 
 vices which the plaintiff alleged he had rendered to the 
 undertaking. The plaintiff's case as against tlie defend- 
 ant Fector went no further than to show that lie on one 
 Q<45
 
 ccclxx Appendix. 
 
 occasion expressed his willingness to become a director 
 in case the scheme could be carried out, and that his 
 name appeared in a prospectus printed for private 
 circulation, without anything to connect the party vnth 
 that prospectus. The judge ruled that the plaintiff 
 was not entitled to recover, one of the defendants not 
 being shown to have been in any way connected with the 
 matter. 
 
 Elkington v. Fergusson and another, Warwick 
 Summer Assizes, a.d. 1841. 
 
 This was an action for services rendered by the plain- 
 tiff as agent to a company formed for caiTj-tng out a rail- 
 way, &c. At the trial a prospectus was put in, in which 
 the plaintiff's name appeared as agent ; and it was also 
 proved that both the defendants were elected and acted 
 fts directors, and that both had given instructions to em- 
 ploy the plaintiff in distributing prospectuses, &c., and 
 had otherwise recognized the plaintiff as the agent of the 
 company. The judge ruled that the items charged by 
 the plaintiff previously to a particular day could not be 
 recovered, as there was no evidence that the defendants 
 had acted as directors before that time. 
 
 Reg. V. Great Western Hailivay Company, 6 A. &E. 
 N. S. 179 ; S. C. 1 Railw. Cas. 28. 
 
 There, as it appeared, the Great Western Railway 
 Company were owners and sole occupies of a line of 
 railway, 118 miles in length, and were also lessees and 
 sole occupiers of two branch lines 44 and 18 miles in 
 length, respectively issuing out of the main line. Upon 
 all these lines they carried on exclusively a large trade as 
 carriers, working the whole as one concern. The receipts 
 of such ti-ade, from the branch lines alone, if set against 
 their expenses and rent, would have made the occupation 
 of them in fact a losing concern, but this occupation in- 
 creased the traffic upon the main line. 
 
 In the parish of T through, which the main line 
 
 passed, the mode adopted by the parish officers in rating 
 the railway was as follows : — They took the gross re- 
 ceipts per mile in the respondent parish, from this they 
 deducted a mileage proportion of the expenses and out- 
 goings on all the lines of railway, and of the interest and 
 tenants' profits (including profits of trade) on the plant 
 necessary for working those lines, and rated the com-
 
 Unreported Cases. ccclxxi 
 
 pauy on the residue. The expenses deducted ranged 
 themselves under the following heads— viz., 1, main- 
 tenance of way ; 2, locomotive account ; 3, carrying 
 account; 4, charges for salary of sujjerintendents and 
 clerks,^ advertising, stationery, &c. ; 5, repairs and 
 alterations of stations, &c. ; 6, compensation for fire 
 and other accidents, &c ; 7, government duty on passen- 
 gers ; 8, rates and taxes of all kinds, actually paid 
 (other than the property tax) ; 9, dhection and office ex- 
 penses, and also a sum for the annual depreciation of 
 the plant necessary for working the main line and 
 hranclies. The appellants claimed the following addi- 
 tional deductions : 1, the rateable value of the buildings 
 appurtenant to the railway, and necessary for its pro- 
 fitable enjoyment, but rated, or rateable, separately from 
 
 it, and in other parishes than T ; 2, the depreciation 
 
 and wear and tear of the rails and sleepers on the 
 main line thitherto defrayed out of the capital -, 3, 5 
 per cent, interest on the sum expended in forming the 
 company, obtaining the act, raising the capital &c. ; 4, 
 the income tax paid by the company, under the o &c () 
 Vict. c. 35 ; 5, additional parochial assessments, which 
 might become payable in consequence of recent decisions 
 of the Court of Queen's Bench on the rating of railways ; 
 6, the annual total loss on the two branches. The appel- 
 lants further contended, that instead of ascertaining the 
 tenants' profits by a per centage on the original value of 
 the plant, or moveable stock, they would be more coirectly 
 represented by a per centage on the gross receipts. 
 
 It was stated on the part of the respondents, tliat the 
 plant or moveable stock of the company was, at the time 
 of making the rate, depreciated in value ; and the ses- 
 sions found that in fact it was so depreciated ; and if any 
 of the deductions demanded by the company were allowed, 
 then the respondents claimed to take such reduced value 
 as the sum upon which interest and tenants' profits should 
 be calculated. 
 
 The court held, that among the above deductions that 
 claimed for the value of buildings aj)purtenant to the 
 main line and branches rated or rateable elsewhere than 
 in the respondent parish ought to be allowed, but that 
 no allowance ought to be made in respect of the dcpn;- 
 ciation and wear and tear of the rails and sleepers, it 
 having been defrayed out of the capital of the company, 
 though the court would, it seems, have held otherwise, 
 had a proportionate sum been actually deducted from the
 
 ccclxxii Appendix. 
 
 annual revenue to meet the charge in question, under the 
 certainty that it would accrue in a given time. The court 
 v/ere further of opinion that no allowance should be 
 made for interest on the sum expended by the com- 
 pany in procuring their act, &c. ; nor for the additional 
 parochial assessments alluded to ; nor for the actual 
 loss on the branch lines. With respect to the claim 
 to be allowed in respect of the sum paid for income tax, 
 the court obsei'ved that they were not informed in respect 
 of what the payment had been made ; the respondents, 
 treating the claim as made in respect of the charge on 
 property in land, payable by the owner, while the appel- 
 lants claimed it in respect of the charge on the occupation 
 payable by the tenant, and to this extent at least the court 
 would seem to have thought it allowable. 
 
 With regard to the two remaining questions : the first, 
 as to the proper mode of ascertaining the tenants' profits, 
 in order to their deduction from the rateable value, the 
 court held a question for the sessions and not for the court ; 
 upon the last, touching the increase of assessment provi- 
 sionally claimed by the respondents, the court thought 
 that the estimate of tenants' profits, &c., should have been 
 taken on the reduced, and not on the original value of 
 the company's plant ; though they would not allow the 
 respondents to avail themselves of this decision, so as to 
 increase their existing assessment.
 
 INDEX. 
 
 A. 
 ACQUIESCENCE. See Laches. 
 
 effect of, in depriving owner of soil of right to injunction 
 
 against grantee of way leave, 9. 
 may deprive party of right to injunction against company, 
 407,413. 
 
 ACT OF PARLIAMENT FOR MAKING RAILWAY, 
 
 validity of, 61. 
 
 construction of, 62 et seq. 
 
 regarded as a contract, 62. 
 
 not to be treated as a mere private assurance, 63. 
 
 party not exempt from provisions of, though he has not had 
 due notice, id. 
 
 distinction between imperative and directory clauses, 64, 
 
 construction of clause giving powers of taking land, 63, 64. 
 
 of taking tolls, 64. 
 of compensation clause, 64. 
 
 several acts relative to same company, 65, 66. 
 
 provisions of prior act embodied in later by way of re- 
 ference, 65. 
 
 remedial effect of later act, 65, 66. 
 
 ACTION. See Limitation of Action ; I'kocess ; Notice 
 OF Action. 
 when lies for owner of soil, &c. against grantee of way- 
 leave, 8. 
 against railway company, 176 et seq. 
 against company to enforce payment of compensation, 219. 
 what declaration to show, 220. 
 for calls. See Calls. 
 
 what railway company may have against strangers, 363. 
 process, what good service of, by company, id. 
 form of declaration and evidence, id. 
 when shareholder may have, against company, 370. 
 when third party may have, against railway company, 377. 
 when company entitled to notice of action, 382, 383. 
 what acts omitted to be done in pursuance of act, 37b, 379.
 
 ccclxxiv Index. 
 
 XCTIO^— {continued.) 
 
 what acts done in pursuance of act, 380. 
 
 tender of amends, 383. 
 
 lies on bond, though lien given on tolls of company without 
 
 priority, 378, n. (g-) 
 declaration to aver performance, &C.384, 385. 
 breach, what held sufficient, 385, 396. 
 general issue, 386, 387. 
 
 negligence, when to be specially pleaded, 386. 
 plea of lien, &c. in trover, 387. 
 de injuria, when improper, id. 
 
 ACTS, 
 
 done in pursuance of statute, what are, 380. 
 omitted to be done, 378, 379. 
 
 ADMINISTRATORS. See Eiecutors. 
 
 ADVERTISEMENT. See Prospectus. 
 
 AGENT, 
 
 when company liable for acts of, 72. 
 
 appointment of, must in general be under common seal 
 
 72, 175. 
 when need not, 175. 
 when presumed, id. 
 act of, what within scope of authority, 175, 176. 
 
 AGREEMENT. See Subscribers' Agreement. 
 
 for withdrawing opposition in parUament, 57 — 60. 
 
 validity of, generally, 58. 
 
 wlien made by peer or member of parliament, 58, 59. 
 
 objects which such contracts may be made to include, and 
 how far may stipulate for deviation, 59, 60. 
 
 company, how far bound by, 162 et seq. 
 
 agreement in general necessary, 163 et seq. 
 
 conditional assent insuHicient, 163, 164. 
 
 benefit of agreement must be received, 165. 
 
 must be for collateral advantage, 165, 166. 
 
 change in organization of projectors, effect of, on prior agree- 
 ment, 166. 
 
 quaere whether specifically enforced, where company lie by 
 and do nothing 166, 167. 
 
 injunction to enforce observance of, 412, 413. 
 
 ALIENATION, 
 
 powers of, enjoyed by railway companies, 125. 
 
 ALLOTMENT OF SHARES. See Letter of Allotment. 
 duty of provisional committee in regard of, 36. 
 
 AMOTION, 
 
 incidental power of, 238.
 
 Index. ccclxxv 
 
 ANIMAL, 
 
 injury to, when company liable for, 305, n. (r). 
 viciousness, &c. of, excuses railway company for not deli- 
 vering safe, 315, n. {y). 
 
 ANNUITY, 
 
 company cannot in general grant, 82. 
 
 grant of, by directors under authority of company, 243. 
 
 APPLICATION FOR SHARES, 
 form of, &c. 23, 42, n. 
 
 APPORTIONMENT OF RENT, 
 
 in case of land taken by railway company, 190. 
 
 ASCENTS, 
 
 to bridges across railway, 108. 
 
 ASSEMBLIES. See General Meetings. 
 
 ASSENT, 
 
 conditional, to passing of bill, effect of, 163, 164. 
 
 ATTORNEY, 
 
 appointment of, to make returns under registration act, 18. 
 under seal, when presumed, 351, 352. 
 
 B. 
 BANKRUPTCY, 
 
 of contractor for railway works, effect of, on stipulations for 
 
 forfeiture, 144 — 146. 
 materials, &c. when not in reputed ownership of contractor, 
 
 146. 
 of shareholder, eflFect of, on shares, 270. 
 assignees take shares, subject to pledge, &c. id. 
 reputed ownership of shares, id. 271. 
 of shareholder, liability for calls, how affected by, 289. 
 
 BILLS OF EXCHANGE, 
 company cannot make, 82. 
 directors cannot issue, &c. 243. 
 
 BOARD OF TRADE. See Inspectors; Legal Proceed- 
 ings; Railway Companies ; Branch Railways; Bye 
 Laws. 
 
 power of supervision of, over railway companies, 330 et seq. 
 
 power of, to direct legal proceedings to be taken against 
 railway companies, 337 — 339. 
 
 BOND, 
 
 by compensation claimant, 209, 210, 394, 395.
 
 ccclxxvi Index. 
 
 BOOKS OF COMPANY. See Calls. 
 how far evidence, 251, 252. 
 right of inspection of, 252. 
 
 BRANCH RAILWAYS, &c. 
 
 power to make, given to owners, &c. of adjoining land, 
 
 78 et seq. 
 who may take advantage of, 79. 
 what railways act authorizes, id. 
 covenant to use, paying higher rate of toll, when held not 
 
 to run with land, 79, 80. 
 ought not to be enforced by injunction, 80. 
 power of making over roads, how to be construed, 80, 81. 
 what semble a determination of power, 81. 
 power of making, for preservation of communication, 124. 
 authority of Board of Trade regarding, 335, 336. 
 
 BRIDGE. See Road; Water. 
 
 when not indictable as a nuisance, 87, 88. 
 
 over mill race, company restrained from making, of less than 
 
 certain dimensions, 90. 
 power of company to make, over road, 87. 
 for the purpose of buildmg, company may place materials 
 
 on land of another company, if necessary, 89. 
 
 BUILDER. See Contractor ; Works. 
 
 BUILDINGS. See Hoise. 
 
 BURTHENS, 
 
 of railway company, 154 et seq. 
 
 BYE LAWS, 
 
 power of making, 247, 248. 
 
 requisites of, 248. 
 
 to be approved of by Board of Trade, 333. 
 
 C. 
 
 CALLS, 
 
 to be made on all the shareholders alike, 40. 
 
 parties taking shares iu trust for company, liable to, id. 
 
 entitled to be reimbursed by company, id. 
 
 future, vendor of share where not entitled to be indemnified 
 
 against, 263. 
 power of making, 275, 276. 
 duty of making, 276, 277. 
 inandaraus to make, 277. 
 to enforce payment of, id. 
 conditions precedent to making, 277, 278. 
 who liable for, 279 et seq.
 
 Index. ccclxxvii 
 
 CALLS — (continued.) 
 
 subscribers, who meant by, 280. 
 
 legal transferee, 281. 
 
 when party estopped from disputing his liability to, 281, 282. 
 
 liability to, party may get rid of, by transfer of share, 283. 
 
 falling due after transfer, transferor not liable for, 284. 
 
 semble, transferee not, id. 285. 
 
 informal transfer, &c. does not discharge from liability for, 
 
 285 et seq. 
 in case of transfer of scrip, who liable for, 286—288, n. 
 liability of assignees for, 289. 
 of bankrupt, id. 
 of executors, id. 290. 
 liability for, how far discharged by forfeiture of shares, 290. 
 irregular forfeiture does not discharge from liability for, 291. 
 to be made by proper parties, 291, 292. 
 semble, invalidity of appointment of directors no ground for 
 
 resisting action for, 292. 
 time of making, 293. 
 amount of, id. 
 
 formalities to be observed in making, 293 — 295. 
 resolution, 293, 294. 
 prospective resolution, 294. 
 notice of, id., 295. 
 security for costs, when defendant may demand in action 
 
 for, 350. 
 declaration, in action for, 350. 
 charging party as subscriber, 351. 
 need not contain count for interest, id. 
 rule to compute in action for, when company cannot have, 
 
 id. 
 appointment of attorney in action for, when presumed to be 
 
 under seal, id. 352. 
 pleas in action for, 278, 279, 352 et seq. 
 application to set aside proceedings in action for, 353, D. 
 general issue, what proveable under, 354. 
 pleas denying giving of notice, &c., id. 355. 
 plea denying proprietorship pleadable with general issue, 
 
 354. 
 pleas denying notice, &c. to conclude to country, id. 
 plea of transfer and registry thereof bad, 355. 
 forfeiture, plea of, what to show, 355, 356. 
 action for, when limited to particular jurisdiction, 356. 
 several pleas in action for, id. 
 of moving to get rid of pleas allowed by judge's order, &c., 
 
 id. 357. 
 estoppel from defendant's acts need not be replied by com- 
 pany, 357. 
 register book evidence of proprietorship, id. 358. 
 enough, if substantially kept in compliance with act, 358. 
 register book, from what time evidence, 359, 360.
 
 ccclxxviii Index. 
 
 CALLS — (^continued.y 
 
 evidence of defendant's proprietorship, where register book 
 
 not receivable, 360. 
 transfer book per se evidence of date of entry of transfer, id. 
 want of memorial of transfer, id. 36L 
 minute book evidence of making, 361. 
 signature, when presumed to be that of chairman, id. 
 may be appended at subsequent meeting, id. 
 injunction lies to compel (Urectors to make equally on ali 
 
 shareholders, 372. 
 when lies to restrain actioo for, 372 — 374. 
 
 CANAL. See Water. 
 
 CARRIER, 
 
 using railway liable for accident to goods, 30S, n. 
 
 CARRIERS. See Carriers' Act. 
 
 railway company viewed as, 303, et seq. 
 duties of, 304—306. 
 liable for refusing to carry, 304. 
 injury to animal, when liable for, 303, n. 
 when bound or not to forward goods same day, id, 306. 
 for what risks liable, 306. 
 commencement of risks, id. 307. 
 termination of risks, id, 308. 
 whether company bound to deliver goods, id. 
 when liable, though place of delivery beyond liioits of 
 
 company's business, 308. 
 special contracts, proof of, id, 309. 
 
 effect of, 309—311. 
 excuse for non-delivery, &€., 315, 316. 
 in case of animal, 315, n. 
 stoppage in transitu, 316, 317. 
 charges of company, when unreasonable, 317, 318. 
 
 when unequal, 318, et seq. 
 short passenser may be charged at higher rate than 
 
 long, 320,^321. 
 right of price of carriage, 321. 
 lien of company, id. 
 
 special property of company in goods. Sec, id. 
 company viewed as passenger carriers, 322, et seq» 
 duties of, 322—324. 
 liable for defect in engine, 322, 323. 
 bound to utmost care and diligence, 325. 
 not liable for mere accident, id. 
 company to explain how accident happened, 326. 
 liability of, as to luggage of passengers, 326 — 328. 
 right to fare, 329. 
 light of lien, id.
 
 Index, ccclxxix 
 
 CARRIERS— (co?iti?med.) 
 
 declaration when charges company as, and not as railway 
 
 proprietors, 379. 
 in declaring against company as, what plaintiff to aver, 385. 
 company sued as, when may plead general issue, 386. 
 mandamus does not lie to company to compel them to carry, 
 
 389, 390. 
 
 CARRIERS' ACT, 
 
 obligations imposed by, 312. 
 
 on whom obligatory, id. 313. 
 
 what articles fall within, 313. 
 
 degree of liability of company under, id. 314. 
 
 main results of, 314. 
 
 CERTIFICATE OF BOARD OF TRADE. See Legal 
 
 PnOCEEDINGS. 
 
 for taking additional land, 340, 341. 
 
 CERTIFICATE, 
 
 of justices to coiTect error, &c. in book of reference, 76. 
 
 when justices to grant, id. 
 
 effect of, id. 
 
 for a house, what held to luciude, id. 
 
 need not expressly aver dispute, id. 
 
 CERTIFICATE OF REGISTRATION, 17. 
 
 CERTIFICATES OF SHARES, 
 
 tender of, what sufficient, 260, 261. 
 
 CERTIORARI, 
 
 lies for railway company to remove coroner's inquest, 364. 
 lies to remove inquisition under railway act, 399, 400. 
 
 coroner's inquest, 401. 
 application for, cannot be renewed, id. 
 what must be shown in order to obtain, id. 
 writ, how taken away, 402. 
 
 of the effect of taking it away, 402 — 404. 
 
 CHARGES. See Carriers; Tolls. 
 
 CHEAP TRAINS, 347. 
 
 CLERGYMEN, 
 
 serable cannot act as managers,&c. of rail way companies, 20. 
 but may be shareholders, id. 
 
 COLONIAL RAILWAY COMPANIES, 
 when to be registered, 12, 13. 
 
 COMMITTEE. See Directors ; Provisional Committee.
 
 ccclxxx Index. 
 
 COMMON SEAL OF COMPANY. See Agent; Contbactj 
 Tort. 
 appointment of agent to be under, 72. 
 how far necessary to validity of acts of company, 73. 
 by whom may be applied, id. 74. 
 
 COMPANY. See Directors ; Subscribers ; Railway Com- 
 pany. 
 for making railway, provisional formation of, 11 et seq. 
 registration of, 14 et seq. 
 
 powers of, under provisional instruments, 26, 27. 
 powers of, on provisional registration, 27, 28. 
 on complete registration, 28 et seq. 
 
 COMPENSATION. See Certiorari; House ; Inquisition j 
 
 Mandamus ; Notice ; Precept ; Purchase Money ; 
 
 Costs. 
 construction of clause relative to, 64, 
 time for making, 185 et seq. 
 
 what not a temporary taking possession of land, 187. 
 in regard of what interests, 187 et seq. 
 in regard of easement, 188. 
 in regard of tenancies at will, &c., id. 189. 
 not claimable where premises not given up before time, 189. 
 tenant how far entitled to apportionment of rent, 190. 
 in regard of tenant's fixtures, good-will, 6lC., id. 191. 
 for what damages to be given, 191 et seq. 
 must be damages caused in execution of powers of act, 191, 
 
 192. 
 how far to be made for damages independent of taking of 
 
 land, 192 et seq. 
 what damages sufficient to support claim for, 194, 195. 
 trifling damages, iScc. not sufficient, 196. 
 for future damages, 197, 198. 
 
 entire claim, when to be brought forward at once, 198. 
 mandamus to assess, 389. 
 
 COMPLETE REGISTRATION, 
 how made, 18, 19. 
 not compulsory on companies, 19. 
 expediency of, id. 
 powers of company on, 28 et seq. 
 
 COMPLETION, 
 
 of line of railway, determines powers of company, 130, 131. 
 of railway, obligatory on company, 148 — 151. 
 
 COMPULSORY POWERS. See Powers of Railway 
 Company.
 
 Index. ccclxxxi 
 
 CONDITIONS PRECEDENT. See Calls. 
 
 compliance with, to be shown, to give right of action against 
 company, 170, 171, 384, 385. 
 
 CONNECTING RAILWAYS, 
 
 disputes between, how to be settled, 333. 
 
 CONSIDERATION. 
 
 failure of, determines powers of company, 127. 
 
 failure from state, &c. of company, where incapable of 
 
 completing line, 128. 
 by reason of deviation by company, id. 129. 
 failure from extrinsic causes, 130. 
 
 CONSTITUTION, 
 
 of company generally, 68, 69. 
 cannot be altered by bye law, 248. 
 
 CONSTRUCTION. See Act of Parliament. 
 of act of incorporation generally, 62, 63. 
 of clause giving powers, 63. 
 of clause giving right to take tolls, 64, 300 et seq. 
 of compensatioa clause, 64. 
 of several aets relative to same company, 65, 66. 
 of restrictions on powers of company to deal with roads, 
 &c., 96 et seq. 
 
 with aquatic rights, 92 et seq. 
 of contracts of railway company, 169, 170. 
 of contract for transfer of shares, 258. 
 '•' void" construed to mean " voidable" at election of com- 
 mittee, 42, n, 43, n. 
 
 CONTINUING POWERS, 131. 
 
 CONTRACT. See Agreement; Directors; Shares; Sub- 
 scribers; Suit; Specific Performance. 
 for sale of shares, 257 et seq. 
 what company competent to make, 81, 82. 
 cannot make bills or notes, &c., 82. 
 loan notes already issued may be renewed, id. n. (d). 
 
 to be paid when due, &c., id. 
 
 to be registered, id. 
 with railway company, 136. 
 
 when need not be under common seal of company, 137. 
 adoption of, by company, effect of, 137. 
 for purchase of land, 138. See Vendor and Purchaser. 
 for sale of surplus laud, 139. 
 for performance of works, 139 et seq. 
 validity of, generally, 139, 140. 
 dependent and independent covenants, test of, 140.
 
 ccclxxxii Index. 
 
 CONTRACT— (coHtinued.) 
 
 stipulation for engineer of company being judge of works, 
 
 142, 143. 
 stipulations for forfeitures, 143 et seq. 
 how far liable to be affected by contractor's bankruptcy, 
 
 144—146. 
 effect of such stipulations, 146 — 148. 
 of railway company, when company liable on, though not 
 
 under commmon seal of company, 161. 
 company liable in case of adoption, &c. of contract, 162. 
 of projectors, for withdrawal of opposition in parliament, 
 
 how far binding on company, 162 et seq- See Agree- 
 ment. 
 requisites of contract by railway company, 167 et seq. 
 mutual consent necessary, 167, 168. 
 legality, &c. of subject-matter, 168, 169. 
 statute of frauds, what a part acceptance within, 169. 
 laws of construction, id. 170. 
 incidents of, 170 et seq. 
 conditions precedent, 170, 171. 
 fraud, oppression, &c. on part of company, equity relieves 
 
 against, 171. 
 specific performance of, id. 172. 
 for purchase of land, effect of company taking possession, 
 
 172. 
 where specific performance of, semble, not decreed against 
 
 company, 173. 
 
 CONTRACTOR FOR RAILWAY WORKS. See Works. 
 when equity will relieve against decision of company's en- 
 gineer, 171. 
 
 CONVERSION, 
 
 railway company liable for, 176. 
 
 CONVEYANCE, 
 
 effect of party refusing, <kc. to convey, 212, 213. 
 of legal estate, suit in equity where necessary to procure, 
 213, 214. 
 
 CORONER'S INQUEST. See Certiorari. 
 when company may move to quash, 364. 
 what course company to pursue where several deodands 
 
 levied at once on same engine, 365. 
 may be quashed in part, id. 366. 
 court in general leaves company to traverse, &c. 36S. 
 certiorari, when lies to remove, 401. 
 when company must pay deodand, 422, 
 
 CORPORATION, 
 
 powers of company viewed as, 68, 69.
 
 Index. ccclxxxiii 
 
 COSTS, 
 
 of mandamus to sheriff to execute precept, 211. 
 
 taxation of, 225, n. (c). 
 
 of making out title, 226. 
 
 of holding of inquisition, id. 227. 
 
 of payment of money out of court, where title in dispute, 
 
 &c. 228, 229. 
 of interim investment in funds, &lc., 229. 
 of payment of dividends, &c., 230. 
 of ultimate investment, 230 et seq. 
 extraordinary costs where company obliged to go into equity 
 
 to procure conveyance of legal estate, 233. 
 
 COVENANT. 
 
 to use railway does not generally run with land, 2. 
 
 otherwise as between lessor and lessee, 2, 3. 
 
 for payment of tenants' damages, to whom money pay- 
 able, 8. 
 
 for payment of fixed sum of money as consideration for with- 
 drawing opposition in parliament, effect of, 60. 
 
 for use of branch railway paying higher rate of toll, not to 
 be enforced by injunction, 79, 80. 
 
 does not run with the land, 80. 
 
 to make archway, specific performance of, when decreed, 
 123. 
 
 test of dependent and independent, 140. 
 
 implied for title on transfer of railway shares, 267. 
 
 CUTTINGS, 
 
 power to take land for, 75. 
 
 right of company to make, on deviated line, 78. 
 
 D. 
 
 DAMAGE. See Compensation; Futuue Damage. 
 company to do as little as possible, 90. 
 
 DAMAGES, 
 
 for not accepting shares, 262, 263. 
 for not transferring shares, 263. 
 
 DECLARATION. See Action ; Calls. 
 
 DE INJURIA, 
 
 when improper, 387. 
 
 DEODAND. See Coroner's Inquest. 
 
 DEPOSIT, 
 
 how far recoverable or not, 42, n., 53.
 
 ccclxxxiv Index. 
 
 DEVIATED LINE, 
 
 revived powers of company taken to apply to, 134, 135. 
 
 DEVIATION, 
 
 stipulation for, on withdrawing opposition in parliament, 
 
 not necessarily illegal, 59. 
 what held not to amount to, 77. 
 power of, how construed, 78. 
 cuttings and embankments on deviated line, id. 
 effect of, on powers of company, 129. 
 
 DIRECTORS. See Provisional Committee. 
 
 provisional, when cannot reserve shares, 36. 
 
 liable to account for profits made thereby, id. 
 
 liable for suffering deposits to remain unpaid, id. 
 
 serable, may enforce payment of deposit, 42, n. 
 
 semble, liable for issuing more than proper number of 
 shares, 53. 
 
 when indictable, id. 
 
 one, when may sue other, 44. 
 
 rights of, against subscribers, 53. 
 
 not liable for deposit, id. 
 
 liable on contracts, &c. for benefit of undertaking, 53, 54. 
 
 circumstances which lead to presumption that credit not 
 given to, 54. 
 
 proof of party's having consented to be a director neces- 
 sary, 55. 
 
 new director liable on prior contract, if he adopt it, id. 
 
 liability of, how determinable, 18, 56. 
 
 liability of, on contract for withdrawing opposition in par- 
 liament, 57 — 60. 
 
 acts of, how far binding on company, 71, 72. 
 
 invalidity of appointment of, shareholders when cannot 
 take objection on score of, 72. 
 
 vacancy in directory, effect of, 71, 72. 
 
 mode of appointment of, 240. 
 
 qualification of, id. 
 
 what not a contract to disqualify party from becoming, id. 
 
 number of, id. 241. 
 
 tenure of office, 241. 
 
 office, how lost, 241, 242. 
 
 remuneration of, 242. 
 
 semble, may be removed for misconduct, 238. 
 
 powers of, 243. 
 
 powers of, contracting, id. 
 
 duties of, 244. 
 
 liabilities of, to company, 245. 
 
 to third parties, 246. 
 
 liable to company in equity for fraud, &c. 362. 
 
 invalidity of appointment of, no ground for relief in equity 
 against action for calls, 373. 
 
 cannot be pleaded in action for calls, 352.
 
 Index. ccclxxxv 
 
 DISTANCE, 
 
 prohibition against making rail or tram roads, railway sta- 
 
 tions, conveniences, &:c. for deposit of goods within o'wen 
 
 distance, 116— 118. 
 house, &c. when to be deemed within given distance of 
 
 railway, 114, 115. 
 
 DRAINING, 
 
 making railway without proper drainage, &c., and thereby 
 causing an inundation of adjoining property, ground for 
 compensation, 195. 
 
 DUTIES, &c. OF RAILWAY COiWPANY. 
 to complete railway, 148 — 151. 
 to maintain railway, 151, 152. 
 to keep it free from impediments, 152, 
 to fence railway, &c., 152, 153. 
 to act up to purposes of their institution, 153. 
 to make and enforce payment of calls, 154. 
 
 E. 
 EASEMENT, 
 
 right to make railway may be claimed by way of, 6, 7. 
 railway, when only an easement, not liable to rate, 7. 
 compensation in respect of, 188. 
 injunction, when lies to secure, 367. 
 
 EMBANKMENTS. See Cuttings. 
 
 ENGINE, 
 
 company liable for accident from defect in, 322, 323. 
 
 ENTAIL, 
 
 of lands taken by company, when barred, 218. 
 
 EQUALITY, 
 
 ofcharges, 318— 321. 
 
 EQUITABLE MORTGAGE. See Mortgage. 
 
 EQUITY. See Injunction ; Suit. 
 
 remedies in, against provisional directors, 36. 
 against holder of letter of allotment, 36, 42, n. 
 
 ESTOPPEL. See Calls. 
 
 in pais, need not be replied, 357. 
 
 EVIDENCE. 
 
 books of company, how far, 252. 
 
 inspection of, id. 
 
 of usage, &c. to explain contract for shares, 258. 
 
 parol, of verdict of compensation jury, 208. 
 
 in action for calls, 361 et seq. See Calls.
 
 ccclxxxvi Index. 
 
 EXECUTION, 
 
 against individual shareholder, 236. 
 
 EXECUTORS, 
 
 right of, to shares of deceased shareholder, 274. 
 
 probate, id. 
 
 liability of, for calls, 289, 290. 
 
 EXEMPTION, 
 
 from rateabilily, 159, 160. 
 
 EX PARTE INJUNCTION, 407,414. 
 
 EXPORTATION, 
 
 meanioo; of the word, SOI. 
 
 F. 
 
 FAILURE, 
 
 of consideration. See Consideration. 
 
 FALSE PRETENCES, 
 
 within joint stock companies act, what are, 21. 
 what evidence of sufficient, id. 
 
 FALSE REPRESENTATION. See Pkospectus. 
 
 FARES. See Carriers; Tolls. 
 
 FENCES, 
 
 companies liable for neglecting to erect, &c. 179. 
 to be made by company, 345, 346. 
 
 FENCING, 
 
 of railway, 152, 153. 
 
 FERRY, 
 
 disturbance of, 415, n. (9). 
 
 issue directed by Court of Equity to try right to, 416. 
 
 FIFTY FEET, 
 
 when house to be deemed within, 114, 115. 
 
 FIRE, 
 
 company liable for, where occasioned by sparks being neg- 
 ligently allowed to escape from engine on railway, 182, 
 183. 
 
 FOREIGN RAILWAY COMPANIES, 
 
 when to be provisionally registered, 12, 13. 
 
 FORFEITURE, 
 
 stipulations for, in building contract, 143 et seq. 
 of shares, 274, 275.
 
 Index. ccclxxxvii 
 
 FORFElTURE-(co7iti«wed.) 
 
 liability for calls, how far got rid of by, 290, 291. 
 plea of, what to show, 355. 
 injunction, when lies to restrain, 372. 
 
 FRAUD, 
 
 whether railway act impeachable on ground of, 61. 
 how far affects powers, &c. of company, 67. 
 covenant securing higher rate of toll for use of branch rail- 
 way, when held to amount to, 79, 80. 
 on part of railway company relieved against in equity, 171, 
 
 FRAUDS, STATUTE OF, 
 
 what a part acceptance within, of goods by railway com- 
 pany, 169. 
 contract for sale of shares not within, 258. 
 shares not goods. Sec, or an interest in land within, 257. 
 
 FUTURE DAMAGE, 197, 198. 
 
 G. 
 GARDEN, 
 
 held to be included in term "house" in certificate, 76= 
 
 GATES. 
 
 at level crossings, 334, 335. 
 
 GENERAL ISSUE, 
 
 in action for calls, effect of, 354. 
 
 in action against railway company, 386, 387. 
 
 GENERAL MEETING, 
 
 resolution of, %vhen operates as act of company, 70, 71. 
 
 what requisite to render resolution valid, id. 
 
 illegality of, not to be presumed, 71. 
 
 requisites of, 237. 
 
 presumption in favour of legality of, id. 
 
 not invalid, because votes of shareholders holding shares in 
 trust for company to be taken into account, 238. 
 
 powers of, id. 
 
 proper tribunal for shareholders to ajjjieal to in first in- 
 stance, id. 239. 
 
 H. 
 
 HIGHWAY. See Way; Road. 
 railway a, 299. 
 
 HOUSE, 
 
 when includes yard and garden, 76. 
 u u 2
 
 ccclxxxviii Index. 
 
 HOUSE— (contmugrf.) 
 
 provision for protection of, 111 et seq. 
 
 to what it applies, 112. 
 
 what a house, &c. situate within fifty feet of railway, 114, 
 
 115. 
 what not, 115. 
 
 inquisition about, when to be taken by a special jury, 116. 
 consequences of its not being so taken, id. 
 what not a road, station, 6ic. within prohibited distance of, 
 
 116, 117. 
 what a breach of a prohibition against making conveniences, 
 
 &c. for deposit, 6cc. of goods within given distance of, 118. 
 
 HUSBAND AND WIFE, 
 
 wife's share pass to husband, and to assignees of husband 
 on his bankruptcy, 271, 272. 
 
 I. 
 
 ILLEGALITY, 
 
 not to be presumed, 58, 59. 
 
 in proceedings of public meeting of company, 71. 
 
 INDEMNITY, 
 
 against future calls, 47, 263, 264. 
 
 INDICTMENT, 
 
 against provisional directors, 53. 
 
 railway company liable to, for nonfeasance, 178, 421. 
 
 when not liable to, 183, 184. 
 
 for obstructing road, 181. 
 
 for setting steam-engine going on railway, 369. 
 
 for wrenching off locks of gates along line, o70. 
 
 railway company liable to, for misfeasance, 421. 
 
 not for felonies, &c. id. 421. 
 
 form of, against company, 422; 
 
 INJUNCTION, 
 
 right of owner of soil to, against grantee of way leave, 
 8 et seq. 
 
 right lost by acquiescence, 9. 
 
 not granted, when railway completed, 9. 
 
 when granted, to restrain owner of soil from taking advan- 
 tage of his legal right, 10. 
 
 covenant for user of branch railway charging higher rate of 
 toll, when not to be enforced by, 80. 
 
 granted to restrain company from making arch over mill 
 stream of less than given dimensions, 90.
 
 Index. ccclxxxix 
 
 INJUNCTION-(eoH(i««ed.) 
 
 obtained by company to restrain trustees of road from re- 
 moving stone blocks, dissolved, 106. 
 
 to restrain company from making road otiierwise than to 
 surveyor's satisfaction, 110. 
 
 to restrain company from acting contrary to scope of their 
 institution, 153, 371, 372. 
 
 when not granted lo restrain party from taking up rails laid 
 down by company, 177. 
 
 when granted to restrain nuisance by company, id. 178. 
 
 to restrain company from making excavations near house 
 &c. 180, 181. 
 
 when railway company may obtain, 366—368. 
 
 in case of trespass under colour of title, 368, 416. 
 
 when lies for individual shareholder against company, 371 
 et seq. 
 
 to enforce directors to make calls on all shareholders alike 
 372. 
 
 to restrain forfeiture of shares, id. 
 
 to restrain action for calls, 372—374. 
 
 for stranger against company, when company go beyond 
 their powers, 406. 
 
 in case of urgency, may be moved for ex parte, after ap- 
 pearance, id. 407. 
 
 irreparable raischief need not be shown on application for, 
 407. 
 
 laches, &c. may deprive party of, id. 408. 
 
 form of, 408. 
 
 undertaking, when accepted in lieu of, id. 409. 
 
 effect of such undertaking, id. 
 
 course pursued by court on application for, where doubtful 
 legal right involved, 369, 409. 410. 
 
 subsequent dealing with by court, 410, 411. 
 
 where obtained by fraud, iic. 412. 
 
 lies, to restrain company from proceeding in violation of 
 arrangement, on faith of u hich the company were buffered 
 to obtain their act, 412, 413. 
 
 lies in plain case of nuisance, 413, 414. 
 
 may be moved for ex parte, 414. 
 
 how dealt with, if obtained by misrepresentation, &c. id. 
 
 course pursued by court, when nuisance not clearly esta- 
 blished, &C.414, 415. 
 
 lies to protect right, in regard of which parly may recover 
 penalties de die in diem, 415, 416. 
 
 INJURY. See Compensation. 
 
 INJURED, 
 
 what meant by term, 100, 101.
 
 cccxc Index. 
 
 INQUISITION. See Compensation; Mandamus; Costs. 
 ■when to be taken by special jury, 116. 
 to be holden before proper party, 202. 
 finding of jury, 203. 
 separate assessment of purchase-money and compensation, 
 
 &c. 203, 204. 
 presumption in favour of, 204. 
 semble, to show jurisdiction on face of it, 205, 206. 
 when held to do so, id. 
 need not show compliance with provision of act operating as 
 
 a defeasance of powers of company, 206. 
 form of, id. 
 effect of, and on what interests must be taken to operate, 
 
 207, 208. 
 parol evidence of verdict of jury, &c. 208. 
 certiorari to remove. See CERTroRARi. 
 
 INSOLVENCY, 
 
 of contract or for railway works. See Bankruptcy. 
 
 INSPECTION, 
 
 of books of company in action for calls, 252, 362. 
 
 INSPECTORS, 
 
 of railways, 330, 331. 
 
 INTEREST, 
 
 in action for calls how recoverable, 351. 
 
 INVESTMENT, 
 
 of purchase money, &c. See Costs; Purchase-Money. 
 what court will sanction under general power, 224. 
 
 IRELAND, 
 
 Irish railway company suing for calls in England, when to 
 give security for costs, 350. 
 
 ISSUE, 
 
 what directed by Court of Equity, 416. 
 
 J. 
 
 JUDGE'S ORDER, 
 
 for charging shares, 272, 273. 
 
 purchase-money in hands of third party cannot be attached 
 under, 273, 274. 
 
 JUDGMENT, 
 
 by default in action for calls, 351.
 
 Index. 
 
 cccxci 
 
 JURISDICTION. See Precept ; Inquisition. 
 
 certificate held to show, without express statement of dis- 
 pute, 76. 
 
 JUSTICES, 
 
 jurisdiction of, in case of parties employed on railways, 
 
 343,344. 
 in case of trespasses, &c. on railways, 344, 345. 
 
 LACHES. See Acquiescence. 
 
 when no bar to remedy in equiiy for compensation-money, 
 222. 
 
 LANDLORD AND TENANT. See Tenancy, &c. 
 
 covenant to use railway as between landlord and tenant 
 runs with land, 2, 3. 
 
 tenant's damages, money reserved by way of, whether pay- 
 able to landlord or tenant, 7, 8. 
 
 when landlord may file bill in equity against railway com- 
 pany without joining tenant, 418. 
 
 LEASE, 
 
 how far company competent to grant, 126, 127. 
 of railway shares, lessee estopped from denying lessor's 
 title, 267. 
 
 LEGAL PROCEEDINGS, 
 
 Board of Trade, when to certify for taking, against com- 
 pany, 337-339. 
 notice to be first given, 339. 
 certificate necessary, id. 
 
 LEGALITY. 
 
 of railway company, 67. 
 of railway act, 61. 
 
 LEGISLATURE. See Parliament. 
 
 LETTER OF ALLOTMENT. See Scnii- CKntiFicATEs; 
 
 Allotment of Shares. 
 
 holder of, liable to pay deposits, 42, n. 
 
 remedies against holder, in case of default in payment of 
 deposit, 43, n. 
 
 forfeiture of, 36, 42, n. 
 
 " void," construed to mean voidable at election of com- 
 mittee, 42, n., 43, n. 
 
 LEVEL CROSSINGS, 334, 335.
 
 cccxcii Index. 
 
 LIEN, 
 
 stipulation for, in contract for performance of railway works, 
 
 145. 
 effect of, 145—148. 
 plea of, by company, 387. 
 
 LIGHTS, 
 
 of house not included in schedule, action lies against com- 
 pany for obstructing, £cc., 179, 180. 
 
 LIMITATION, 
 
 of action, 380—382. 
 
 LOAN NOTES. See Contract. 
 
 railway companies not to borrow money on, 82, n. (d). 
 
 LUGGAGE. See Carriers. 
 
 M. 
 
 MAILS, 
 
 transmission of, by railway, 346. 
 
 MAINTENANCE, 
 
 of railway, 151, 152. 
 
 MAKING OF RAILWAY. See Railway ; Duties, &c. of 
 Railway Company. 
 
 MANDAMUS, 
 
 to company to make road to satisfaction of surveyors, 110. 
 
 to complete railway, 150, 151. 
 
 to issue precept to assess compensation, when lies to com- 
 pany, 209. 
 
 when refused, id. 
 
 giving of bond how far a necessary preliminary to applica- 
 tion for, 209, 210. 
 
 to company to issue fresh precept, when does not lie, 211. 
 
 to sheriff, 6cc. to execute precept, id. 
 
 semble, does not lie to compel payment of purchase-money 
 to owner of land, &c. 219. 
 
 lies to enforce payment of purchase-money, Sec. into bank, 
 221. 
 
 application for, what to show, id. 
 
 legality of prior proceedings presumed on such application, 
 id. 
 
 lapse of time, when no reason for refusing, id. 
 
 to make calls, 277. 
 
 to enforce payment of calls, id. 
 
 when lies for shareholder against company, 371. 
 
 in what cases lies against company for third party, 388, 
 389, 392.
 
 Index. cccxciii 
 
 MANDAMUS— (continued.) 
 when not, 389—391. 
 
 what to be shown on moving for, 393 — 395. 
 un-it must show enough to give court jurisdiction, 396. 
 fault must be distinctly charged, id. 
 mandatory part of, what to show, 396, 397. 
 return, 397—399. 
 part of, may be quashed, and rest traversed, 399. 
 
 MARRIAGE. See Husband and Wife. 
 
 MEMBER OF PARLIAMENT. See Parliament. 
 
 MESSUAGE. See House. 
 
 MILITARY, &c. 
 
 to be conveyed by railway companies, 346. 
 
 MINE. See Minerals. 
 
 MINERALS,' 
 
 provisions relating to, 118 — 120. 
 
 MINUTE BOOK. See Calls. 
 
 MISREPRESENTATION. See Fraud; Prospectus. 
 
 MONEY HAD AND RECEIVED, 
 
 action for, when lies against company, 377, o. (^). 
 
 MORTGAGE, 
 
 how far company competent to, 126. 
 
 by company, effect of, 244. ^ 
 
 land of company when not included in, id. 
 
 equitable, of shares, how created, 267. 
 
 necessity of notice, 268. 
 
 mortgagor, &c., a trustee for mortgagee, dec. id. 
 
 mortgagee, &c. paying calls entitled to be reimbursed, id. 
 
 269. 
 lien of mortgagee, &c. when lost against subsequent pur- 
 chaser, 268, 269. 
 shares when in reputed ownership of mortgagor, 270, 271. 
 
 N. 
 
 NAME, 
 
 of company to be used in ail proceedings by or against tlie 
 company, 72, 73. 
 
 NEGLIGENCE. See Tort; Injunction; Action. 
 
 NEW TRIAL, 
 
 when parly cannot move for, 211. 
 K n 5
 
 cccxciv Index. 
 
 NONFEASANCE. See Tort ; [ndictment. 
 
 NOTICE, 
 
 of company's intention of taking property, 198, 199. 
 what to show, 199. 
 effect of, id. 
 counter notice, id. 200. 
 
 to company by claimant of compensation, 208, 209. 
 of equitable mortgage, &c. to company, 268, 269. 
 what equivalent to, 271. 
 of opening railway, 331. 
 
 to quit by company to determine tenancy at will. Sec, 188, 
 189. 
 
 NOTICE OF ACTIOi^J. 
 
 when company entitled to or not, 382, 383. 
 to inc'ude plaintiff's entire grievance, 383. 
 
 NOTICE OF CALLS. See Calls. 
 
 NUISANCE BY RAILWAY COMPANY. See Indict- 
 ment ; Injunction. 
 branch railway over road, when amounts to, 80, 81. 
 liability of company for, 178. 
 
 injunction when granted to restrain, 177, 178, 413 — 416. 
 frightening horses on highway, company when not indict- 
 able for, 184. 
 
 OBSTRUCTION. See Officer. 
 
 of railway, what is within 3 6c 4 Vict. c. 97, s. 15. .344. 
 
 OFFICERS OF COMPANY. See Agent; Servants of 
 
 Company. 
 who proper to be registered as, 16. 
 rights and liabilities of, 247. 
 
 liability of, in case of drunkenness, &c., 342 et seq. 
 obstruction of, subjects party to penalty, 344, 345. 
 may be made co-defeudants in suit with company, 376, 
 
 419. 
 
 OPPOSITION. See Parliament. 
 
 OPTION. See Purchase; Tolls. 
 
 ORDER OF JUDGE. See Judge's Order. 
 
 for pleading several pleas, how to be got rid of, 356, 357. 
 
 OUSTER, 
 
 by railway company, 176.
 
 Index. cccxcv 
 
 OWNER, 
 
 who meant by, 99. 
 
 OWNERS AND PROPRIETORS, 
 
 interpretation of terms, 187, 188. 
 
 P. 
 
 PARLIAMENT, 
 
 effect of order of, touching amount of subscriptions, 38 etseq. 
 
 proper tribunal to j udge of validity of subscriptions, 38, 39. 
 
 withdrawing opposition in, how far good consideration for 
 contract, 57 — 60. See Agreement. 
 
 member of, may contract with projectors of railway for pro- 
 tection of his property, 58, 59. 
 
 fraud on, what not, 59, 60. 
 
 PARLIAMENTARY CONTRACT, 25. 
 
 PARTIES, 
 
 to suit, by shareholder against company, 374 — 376. 
 
 to suit, by third party against company, 417. 
 
 party may sue alone in regard to special interest, id. 418. 
 
 when landlord may sue witiiout joining tenant, 418. 
 
 when others to be made co-delendants with company, id. 
 
 419. 
 parties refusing to act as co-plaintiffs, 419. 
 officers of company may be joined as co-defendants with 
 
 company, id. 
 to suit between shareholders, 423, 424. 
 when shareholder may sue on behalf of company, 424. 
 
 PASSENGERS. See Carriers. 
 
 PAYMENT. See Purchase Monev. 
 
 PEER, 
 
 contract by, for withdrawal of opposition in parliament, 58, 
 59. 
 
 PENALTY, 
 
 for failing to register, 17. 
 
 for falsely pretending that company is patronized by a par- 
 ticular person, 21. 
 
 may be sued for in superior court, though power given to 
 recover before two justices, 100, 377, n. (g). 
 
 stipulations for, in building contract, 143 et seq. 
 
 against parties employed on railways, 343. 
 
 for trespasses, &c. on railways, 344, 345.
 
 cccxcvi Index. 
 
 PERSON, 
 
 held to include railway company, 378. 
 
 PLEADINGS, 
 
 in actions for calls, see Calls. 
 
 in actions against company, see Action. 
 
 PLEDGE. See Mortgage. 
 
 POLICE REGULATIONS, 
 
 touching ortences on line of railway, 342 et seq. 
 
 obstruction of line, 344. 
 
 obstruction of officers, trespasses, &c. id, 345. 
 
 POOR'S RATE. See Rate. 
 
 POSSESSION, 
 
 temporary taking, of land, what not, 187. 
 
 POST OFFICE. See Mails. 
 
 POWERS OF RAILWAY COMPANY, 
 
 construction of, 74, 75, 84. 
 
 of making and maintaining railway, 75 et seq. 
 
 excess of, remedy for, in equity, 75. 
 
 certificate, 76. 
 
 deviation, 77, 78. 
 
 cuttings and embankments on deviated line, 78. 
 
 of making branch railways, 78 — 84. 
 
 of contracting, 81, 82. 
 
 of taking land, &c. 82 et seq. 86, 87, 
 
 enabling powers, 82, 83. 
 
 compulsory powers, whether company possessed of, or not, 
 
 83, 84. 
 of dealing with roads, 87, 88. 
 of constructing works, 88, 89. 
 what incidental to that of building bridge, 89. 
 company to do as little damage as possible in carrying out 
 
 act, 90. 
 how far qualified by provisions relating to minerals, 118 — 
 120. 
 
 by provision for preservation of communication across 
 railway, 121 et seq. See Road. 
 
 by prohibition against making railway station, &c. 
 within given distance, 116 — 118. 
 
 by provisions as to houses, buildings, &c., see House. 
 
 by provisions as to roads, &:c , see Roads. 
 
 by provisions as to aquatic rights, see Water. 
 determination of, from failure of consideration, 127 et seq. 
 company incapable of completing line, 128. 
 deviation by company, 129.
 
 Index. cccxcvii 
 
 POWERS OF RAILWAY COMPANY— (conti/iJied.) 
 
 failure of consideration from extrinsic circumstances, 130. 
 
 determination of, by completion of object, 130 — 132. 
 
 continuing powers, 131. 
 
 determination of, by lapse of time, 132. 
 
 revival of, by way of reference to old act, 133. 
 
 when company enabled to carry into effect proceedings 
 
 under old act, 134. 
 new powers taken to apply to deviated line, 134, 135. 
 of alienation, 125. 
 of selling surplus lands, id, 126. 
 of mortgaging, 126. 
 of leasing, id. 127. 
 
 extension of, in cases of accidents, slips, &c. 339, 340. 
 renewal of compulsory powers, 340, 341. 
 
 PRECEPT. See Mandamus. 
 
 to be consistent with notice, 200, 201. 
 to be addressed to proper party, 201. 
 serable, to show jurisdiction to issue, id, 
 to sheriff, issued by third party, 210. 
 bond prior to issuing, 209, 210. 
 mandamus to issue fresh precept, 211. 
 to execute precept, id, 
 
 PROBATE, 
 
 of shares, 274. 
 
 PROCESS, 
 
 what good service of, by company, 363. 
 
 on company, 383, 384. 
 
 PROMISSORY NOTES. See Bills of Exchange. 
 
 PROPRIETORSHIP, 
 
 evidence of, see Calls. 
 
 PROSPECTUS, 
 
 registration of, 17. 
 
 nature of, 22. 
 
 consequence of false representation in, 22, 23. 
 
 does not constitute partnership, 23. 
 
 should specify intention to reserve shares, 35, 36. 
 
 effect of publication of, 35. 
 
 PROVISIONAL AGREEMENT, 
 
 rights and liabilities of parties under, see DinECTons ; Sub- 
 scribers. 
 
 PROVISIONAL COMMITTEE. See DiRtcrons. 
 registration of, 15. 
 clergy not to be chosen members of, 20.
 
 cccxcviii Index. 
 
 PROVISIONAL COMMITTEE— (fonfijmed.) 
 
 names of persons not to be published as members of, with- 
 out authority, 20, 21. 
 
 PROVISIONAL REGISTRATION, 
 how made, 14 et seq. 
 powers of company on, 27, 28. 
 
 of foreign or colonial railway companies, when necessary, 
 12, 13. 
 
 PUBLIC, 
 
 term how construed, 118. 
 
 PURCHASE, 
 
 of railways, option of, 347, 348. 
 
 PURCHASE-MONEY, &c. See Action- ; Mandamus; Com- 
 
 PENSATioN ; Costs. 
 time of payment, 214. 
 mode of payment, 215 et seq. 
 company when justified in paying into bank, id. 
 order for payment of, into bank, what sufticient, 218. 
 effect of payment of, in vesting property in company, ici. 219. 
 payment of, how lo be enforced, 219 et seq. 
 remedy for, in equity, 221, 222. 
 
 lapse of time, where no bar to, 222. 
 paid into bank, when parly entitled to have paid out on his 
 
 own affidavit of title, 223. 
 where several parties interested in, id. 
 disposition of, where party under incapacity, id. 224. 
 
 R. 
 
 RAILWAY, 
 
 construction of, 296. 
 
 user of, 298—300. 
 
 railway a highway, 299. 
 
 made by owner of soil, character of, 2. 
 
 covenant to use, not a covenant generally that runs with 
 
 land, id. 
 otherwise between lessor and lessee, 2, 3. 
 made under way leave, 4 et seq. 
 
 need not be mentioned in express term of reservation, 6. 
 right of making, claimed by way of easement, 6, 7. 
 or for necessary occupation of adjoining closes, 6. 
 rights and liabilities of owner of such railway, 7, 8. 
 remedies relative to, 8 et seq. 
 
 legal rights of owner of land, when enjoined or not, 10. 
 making and maintaining, 75 et seq, 
 duty of so doing, 148 — 152.
 
 Index. cccxcix 
 
 RAILWAY ACT. See Act of Parliament, 
 regarded as a contract, 62. 
 
 RAILWAY COMPANY. See Action; Indictment; In- 
 junction; Suit. 
 
 completely registered, how far within provisions of Joint 
 Stock Companies Act, 32 et seq. 
 
 legality of, 67. 
 
 constitution of, generally, 68. 
 
 viewed as a corporation, 68, 69. 
 
 powers of, 74p.tseq. See Powers of Railway Comtany. 
 
 mode of action, 70 et seq. 
 
 rights of, 136 et seq. See Contract. 
 
 duties of, 148 et seq. See Duties. 
 
 burthens, 154 et seq. See Rates. 
 
 public acts and liabilities, 160 et seq. See Contract; 
 Tort. 
 
 how far liable for resolutions of public meeting, 70, 71. 
 
 for acts of directors, 71; 72. 
 
 for acts of agents, &c. 72. 
 
 proper name of, to be employed in all proceedings by or 
 against compay, 72, 73. 
 
 must act, &c. by its common seal, 73, 74. 
 
 powers of, how determined, 127. 
 
 how revived, 133. See Powers of Railway (,'ompavy. 
 
 occupying line of another company, lialile for torts of ser- 
 vants employed on such hne, 184. 
 
 supervision of, by Board of Trade, 330 et seq. 
 
 inspection of railway, 330, 331. 
 
 to give notices of opening, \c. 331. 
 
 to make returns of traffic, accidents, &c. to Board of Trade, 
 332. 
 
 bye-laws, 333. 
 
 disputes between connecting lines, id. 
 
 level crossings, 334, 335, 345. 
 
 branch cominunicatioiis, 335, 336. 
 
 legal proceedings against, upon certificate of J3oard of Tiade, 
 337—339. 
 
 extension of powers of company, 336. 
 
 in cases of accidents, slips, &c. 339, 340. 
 
 renewal of compulsory powers of, 340, 341. 
 to erect and maintain fences, 345, 346. 
 
 to permit military, &c. to t)e conveyed by railway, 346. 
 to afford facilities for transmission of mails, id, 
 
 for erection of electrical telegraphs, id. 
 to provide cheap trains, 347. 
 
 power of government to purchase railways and revise lolls, 
 
 id. 348. 
 viewed as carriers. See Carriers. 
 when indictment lies against, 421, 422.
 
 cccc Index. 
 
 RATE, 
 
 railway made under way-leave, when liable to, or not, 7. 
 
 general principle of rating railways to relief of poor, 155 
 et seq. 
 
 deductions to be made in favour of company, 156. 
 
 makes no difference in principle whether company in exclu- 
 sive enjoyment of traffic on line or not, 156, 157. 
 
 provision for keeping account of tolls, 157. 
 
 actual earnings in parish criterion of rateable value of por- 
 tion of railway in parish, 158. 
 
 variation of principle of rating bv statute, 159. 
 
 exemption from rateability, 159, 160. 
 
 REGISTER BOOK. See Call. 
 
 REGISTRATION. See Provisional Registration and 
 Complete Registration. 
 
 REGISTRATION ACT, 
 
 foreign and colonial raihvay companies how far within, 
 
 12, 13. 
 returns to be made under, 14 et seq. 
 
 REGISTRY, 
 
 of proprietors, 249. 
 
 company liable to action for refusal to register, 249, 250. 
 
 of probate, 249, note (e). 
 
 provisions touching, held not to affect property in shares, 
 
 250. 
 of proceedings of company, 251. 
 
 REMAINDER. See Reversioner. 
 
 REMEDIAL, 
 
 effect of later act, 65, 66. 
 
 REMEDIES. See Action 5 Suit. 
 for calls. See Calls. 
 
 RENT, 
 
 apportionment of, 190. 
 
 REPUTED OWNERSHIP. See Bankruptcy ; Shares. 
 
 RESERVATION OF SHARES, 22, 36. 
 
 RESOLUTION. See General Meeting. 
 
 RETROSPECTIVE, 
 
 new act, when construed to be, 134.
 
 Index. cccci 
 
 RETURNS, 
 
 to be made by railway companies, 332. 
 
 REV^ERSIONER, 
 
 when barred as against company, 218, 219. 
 
 REVIVAL, 
 
 of proceedings under prior act by later, 134. 
 of powers of railway company, 133 — 135. See Powers op 
 Company. 
 
 RIGHTS OF RAILWAY COMPANY, 
 on contracts. See Contract. 
 
 RIVER. See Water. 
 
 ROAD. See Bridge; Way; Works. 
 
 power of making branch railway over, what it authorizes, 
 
 80,81. 
 what semble a determination of power, 81. 
 power of dealing with, what it authorizes, 87, 88. 
 company to do as little damage to, as possible, 90, 91. 
 restrictions on powers of company in favour of, 95 et seq. 
 construction of restrictions, 9t) et seq. 
 company held entitled to lower road, 98. 
 when not bound to excavate whole road, 96, 97. 
 entitled to place piers of bridge upon, 98. 
 general provisions against injury to roads, 99 et seq. 
 when road taken by company, 100. 
 construction of term "injured," 100, 101. 
 penalty for not restoring, &c. 99. 
 criteria for determining wiieliier new road, &c. as good as 
 
 old, 102 et seq. 
 
 expense, how far may be considered in determining 
 question, 104. 
 what no excuse for not making new road as good as old, id. 
 
 105. 
 restoring road, what meant by, 105. 
 provisions as to crossing of road, 106. 
 injunction to restrain trustees of road from taking up slone 
 
 way laid down by railway company dissolved, id. 
 bridge across railway how to be constructed, 106, 107. 
 inclination of ascents to bridges across railways, 108. 
 bridge does not include approaches, 107. 
 what a turnpike road, 109. 
 
 jurisdiction of surveyor, &c. of roads, to decide about alter- 
 ation of, &c. by company, 109 — 1 1 1. 
 remedy for surveyors, &c. if company do not make road to 
 
 their satisfaction, 1 10. 
 makmg of, within prohibited distance, what does not amount 
 
 to, 116, 117.
 
 ccccii Index. 
 
 ROAD— (continued.) 
 
 communicating with or crossing railway, &c. power of 
 
 making, 123, 124. 
 lowering of, and thereby impeding access to land, ground for 
 compensation, 195. 
 
 SALE. See Shares ; Vendor and Purchaser. 
 
 powers of, enjoyed by railway companies, 125, 126. 
 proviso as to pre-emption in case of surplus land, effect of, 
 126. 
 
 SCOTLAND, 
 
 jurisdiction of sheriff in case of offences on railways, 344. 
 Scotch railway company suing for calls in England, when 
 must give security for costs, 350. 
 
 SCRIP CERTIFICATES, 
 delivery of, 25. 
 remedy for refusal of, 26, n. 
 dealing in, how far legal, 45 et seq. 
 purchaser not bound to accept transfer of shares, &c. on act 
 
 passing, 47. 
 price of, recoverable on project failing, 48. 
 sale of, not illegal under joint stock company's act, even 
 
 while company only provisionally registered, 49, 50. 
 in case of transfer of scrip, who liable for calls, 286 — 288, n. 
 
 SEAL. See Common Seal. 
 
 SECURITY FOR COSTS, 
 
 when Scotch or Irish company compellable to give, 350. 
 
 SERVANTS OF COMPANY. See Agent; Officers of 
 Company. 
 rights and liabilities of, 246, 247. 
 for what offences liable to summary conviction, 342 et seq. 
 
 SEVERAL PLEAS, 
 
 in action for calls, 356. 
 
 how to move to get rid of, when allowed by judge's order, 
 id. 357. 
 
 SHAREHOLDERS. See Shares; Subscribers; Calls. 
 taking shares in trust for company liable to calls, 38 et seq. 
 
 may vote at meetings, &c 40, 41, 238. 
 
 entitled to be reimbursed by company all calls, 40. 
 how parties may become, 234, 235. 
 rights, duties, &c. of, 235. 
 liability of, 236. See Calls.
 
 Index. cccciii 
 
 SHAREHOLDERS-(coiitiHMerf.) 
 character of, how determined, id, 
 remedies between, at law, 423. 
 
 in equity, id, 424. 
 when may sue on behalf of company, 424. 
 
 SHARES. See Fobffiture; Lease; BANKRUPTcyj Judge's 
 
 Order; Transfer. 
 reservation of, 36. 
 
 profits of reservation of, to be accounted for to company, id. 
 taken in trust for company, 38 — 41. 
 semble, directors liable for issuing more than proper number 
 
 of shares, 53. 
 are personal property, 254. 
 power of assigning, 255. 
 
 calls on, must be paid before transfer, 255 — 257. 
 title and capacity of vendor, 256, 257. 
 vendor need not be possessed, &c. of shares at time of con- 
 tract, 256. 
 purchaser may waive objection that calls on not paid by 
 
 parol, 257. 
 not goods. &c. or an interest in land, within statute of frauds, 
 
 257, 258. 
 evidence of usage, &c. admissible to explain contract for 
 
 sale of, 258. 
 vendor to show good title, &c. 259, 260. 
 duties of purchaser, 259, 260. 
 
 tender of certificates under contract for sale of. 260, 261. 
 time of tendering, &c., 26i, 262. 
 purchaser of, to tender conveyance, 262. 
 damages for not accepting, what recoverable by vendor, id. 
 263. 
 for not transferring, what recoverable by vendee, 
 263. 
 vendor not entitled to be indemnified against future calls, id. 
 
 264. 
 bill lies to enforce specific performance of contract for sale 
 
 of, 264. 
 effect of variation in contract, id. 
 instrument of transfer a deed, 265. 
 when invalid, id. 266. 
 effect of transfer, 266. 
 serable, transferor euiitied to be indeinnificd against future 
 
 calls, id. 
 implied covenant for title, 267. 
 lease of, id. 
 
 pledges, equitable mortgages of, id. — 269. 
 devolution of, in case of bankruptcy, 270. 
 reputed ownership of, id. 271. 
 transfer by marriage, 27 1 , 272.
 
 cccciv Index. 
 
 SHARES— (con«in?jed.) 
 
 judge's order for charging:, 272, 273. 
 
 vest in executors, &c., 274. 
 
 probate of, id. 
 
 liability of, to forfeiture, id. 'lib. 
 
 assignment of, how affects liability for calls. See Calls. 
 
 SHERIFF, 
 
 a shareholder, cannot preside at inquisition, 203. 
 
 qusre, whether rule applies where two persons constitute 
 
 the sheriff and only one a shareholder, id. 
 when cannot depute his authority, 202. 
 
 SPARKS. See Fire. 
 
 SPECIAL CONSTABLES, 297. 
 
 SPECIAL JURY, 116. 
 
 SPECIFIC PERFORMANCE, 
 of covenant, when decreed, 123. 
 of contract for purchase of land, when company may insist 
 
 on, 138. See Vendor and Purchaser. 
 of contract, when decreed against railway company, 171, 
 
 172. 
 of contract for sale of shares, 264. 
 variations of contract proposed and not agreed on, no bar to 
 
 decree for, id. 
 of contract, when decreed in favour of company, 366. 
 when decreed against company, 417. 
 
 SPIRITUAL PERSONS. See Clergymen. 
 
 STANDING ORDERS. See Parliament. 
 
 STATION, 
 
 what not a station within prohibition against making stations, 
 
 &c. within given distance of house, 5ic., 117. 
 what held to constitute a station, id. 
 
 STOPPAGE IN TRANSITU, 316, 317. 
 
 STREAM. See Water. 
 
 STREET. See Road. 
 
 public, when company may arch over, 88. 
 
 SUBSCRIBERS. See Letter of Allotment. 
 
 for additional shares for benefit of company, rights and 
 
 liabilities of, 38 et seq. 
 to be viewed as partners, 43. 
 when one may sue another, id. 44.
 
 Index. 
 
 ccccv 
 
 SUBSCRIBERS— (coiitiHued.) 
 rights of, against directors, 45. 
 liabilities of, to do, 44. 
 interest of, in undertaking, 45 et seq. 
 dealing by, in scrip certificates, whether valid, id. 
 purchaser of scrip not bound to accept legal transfer of shares, 
 
 or indemnify vendor, 47. 
 purchase money recoverable where project fails, 48. 
 not in general liable on contracts for benefit of undertakincr, 
 
 56, 57. 
 who meant by, 280. 
 declaration against parly as, need not be on subscription 
 
 deed, 351. 
 
 SUBSCRIBERS' AGREEMENT, 25. 
 
 SUBSCRIPTION, 
 
 for shares, what sufficient, 38 et seq. 
 
 SUBSCRIPTION DEED, 
 
 when not necessary to declare on, 351. 
 
 SUIT IN EQUITY. See Parties; Injunction. 
 
 by company, when necessary to procure conveyance of 
 
 land, 213, 214. 
 against directors, 362. 
 by company against third party, 366, 367. 
 by shareholder against company, 371 et seq. 
 frame of bill, 376. 
 
 against company what third party may have, 404 et seq. 
 where company go beyond their powers, 405, 406. 
 where company seek to violate arrangements on faith of 
 
 which act obtained, 412, 413. 
 for relief against nuisance. See. by company, 413 et se(|. 
 issue, when directed by court of, 416. 
 for relief on contract against company, id. 417. 
 between individual shareholders, 423. 
 parties to, id. 424. 
 on behalf of company, when individual shareholders may 
 
 bring, 424. 
 frame of bill in suit against company, 419, 420. 
 defence to bill, 420. 
 
 SURPLUS LAND, 
 
 power of company to sell, 125, 126. 
 contract for sale of, 139. 
 
 T. 
 
 TELEGRAPH, 
 
 lines of electrical, 346.
 
 ccccvi Index. 
 
 TENANCY, 
 
 at will, &c. power of company to determine by noticC) 188, 
 
 189. See Compensation. 
 provision for con)pensation in regard of, 189. 
 compensation when not claimable, id, 
 tenant when entitled to apportionment of rent, 190. 
 
 TENDER OF AMENDS, 383. 
 
 TIME, LAPSE OF, 
 
 effect of, in delermioing powers of company, 132. 
 
 TITHE RENT CHARGE, 159. 
 
 TITLE. See Costs, 
 
 failure to make out to company, effect of, 21?.. 
 
 what, semble, not a parlianientary confirmation of, id. 220. 
 
 plaintiff to aver that he has made out, &c. in action for 
 
 purchase money, 220. 
 vendor to show good title to shares, 260 et seq. 
 
 TOLLS, 
 
 right to, generally, 300 et seq. 
 
 construction of clauses giving 39, 300 et seq. 
 
 right to, how defeated, 302, 303. 
 
 option of revising, reserved to government, 347, 348. 
 
 TORT. See Compensation. 
 
 railway company how far capable of committing, 174. 
 when may be regarded as public act of company, id. 
 appointment of agent must in general be under common 
 
 seal, 175. 
 when appointment of agent under common seal need not be 
 
 shown, id. 
 when presumed, id. 
 
 act of agent must be within scope of his authority, id. 
 company liable for conversion, &c., 176. 
 for waste, ouster, ikc. id. 177. 
 
 injunction when not granted to restrain party from pulling 
 up rails of company, 177. 
 
 when granted to restrain nuisance by company, id. 
 178. 
 railway company liable to indictment for nonfeasance, 178. 
 liable for neglecting to erect, &c. proper 
 gates, 179. 
 railway company liable for doing what act does not autho- 
 rize, id. 180. 
 distinction between foreseen and unforeseen mischief, 180.
 
 Index. ccccvii 
 
 TORT — (^contimied.') 
 
 railway company liable for doing in improper manner what 
 act authorizes, 180. 
 liable for making excavations carelessly, &c., 181. 
 for making; works over public thoioughfaie to public 
 
 inconvenience, id, 
 not liable when works done with due regard to interests 
 
 both of public and the company, id. 182. 
 liable for fiie arising from careless use of engine, 182, 
 
 183. 
 not liable for accident where they only do what act 
 
 authorizes, and that in proper manner, 183, 184. 
 when not liable for nuisance to travellers on old high- 
 way, from use of locomotive engines on railway, 
 184. 
 company in actual occupation of line liable for act of 
 servants in management of traffic, id. 
 
 TRANSFER. See Shares. 
 
 of shares, what sufficient to constitute a shareholder, 234. 
 power of, 255. 
 
 contract for sale of shares, 257 et seq. 
 instrument of, a deed, 264, 265. 
 when invalid, 265, 266. 
 want of memorial does not invalidate, 266. 
 though till memorial entered, transferor liable to calls, id. 
 semlde, transferor entitled to be indemnified against calls, id. 
 implied covenant for title, 267. 
 transferee liable for calls, 281. 
 
 effect of, in discharging transferor from liability for calls, 
 283. 
 
 TRANSFER BOOK, 
 
 evidence per se of dale of entry of transfer, 360. 
 
 TRESPASS, 
 
 on railway, what wilful, within 3 & 4 Vict. c. 97, s. 16.. 
 
 344, 345. 
 company may have action for, 363. 
 under colour of title, injunction to restrain, 368, 416. 
 
 TROVER, ACTION OF, 
 
 company liable to, for conversion, 176. 
 against company, plea of lien, &c. in, 387. 
 de injuria, when improper replication in, id. 
 
 TRUST, 
 
 shares held on secret, in reputed owneraliip of trustee, 270, 
 
 271.
 
 ccccviii Index. 
 
 TRUSTEE, 
 
 when shareholder to be deemed trustee for compaoy, 40. 
 
 rights of, in such case, id. 
 
 within Stat. 1 Will. 4, c. 60, infant heir, &c. when, 214. 
 
 TURNPIKE ROAD. See Road. 
 what is, 109. 
 
 U. 
 
 UNDERTAKING. See Injunction. 
 
 USER, 
 
 of railway generally, 298 — 300. 
 railway a highway, 299. 
 
 V. 
 
 VENDEE, 
 
 of shares, when may have action against vendor for purchase 
 money, 48, 49, 423. 
 
 VENDOR AND PURCHASER. See Sale; Shares; 
 Purchase Money; Suit; Specific Performance. 
 
 relation of, established between company and land owner, 
 by notice to take land for purposes of railway, 199. 
 
 when company may insist on specific performance of con- 
 tract for purchase of land, 138. 
 
 adoption of contract by company, id. 
 
 sale of surplus land, 139. 
 
 efTect of company taking possession without leave of vendor, 
 &c. 214, 215. 
 
 when specific performance of contract for purchase of land, 
 semble, refused against railway company, 173. 
 
 VERDICT. See Inquisition. 
 
 effect of, where made final and conclusive, 211. 
 
 W. 
 WAITING PLACE. See Station. 
 W^ARRANT. See Precept. 
 
 WATER, 
 
 when company may build temporary bridge over canal, 
 
 88, 92—94. 
 company cannot come down on stream and destroy parly's 
 
 interest, 90.
 
 Indej:. ccccix 
 
 y^ATER- (continued.) 
 
 company restrained from constructing arch over mill stream 
 
 of less than given dimensions, 90. 
 restrictions on powers of company, in favour of aquatic 
 
 rights, 92 et seq. 
 who may take advantage of, 94, 95. 
 raising level of brook, and causing inundation, good ground 
 
 for compensation, 195. 
 
 WAY. See Indictment; Road; Tort. 
 right of, across railway, 121, 122. 
 how lost, 122. 
 mandamus to restore, 389. 
 
 WAY LEAVE, 
 
 extent of, 3 et seq. 
 
 unlimited right of, when not inferred, 6. 
 
 railway need not be expressly mentioned in, id. 
 
 when grantee of, liable to poor rate or not, 7. 
 
 grantee of, when liable to action, 8. 
 
 when liable to injunction in equity, 8 et seq. 
 
 right of owner of soil to injunction, may be lost by laches, 9. 
 
 injunction not granted after work complete, id. 
 
 legal right of owner of soil, when enjoined in equity, 10. 
 
 tenant's damages reserved on grant of, to whom payable, 8. 
 
 WHARF, 
 
 when party entitled to have new vviiarf made by company, 
 100, 101. 
 
 WIDTH OF ROAD. See Road. 
 
 WITHDRAWING OF OPPOSITION. See Agrekment ; 
 Parliament. 
 
 WORK AND LABOUR, 
 
 in obtaining act, when party may recover for, 370. 
 for railway company when provisionally organized, 54. 
 
 WORKS, 
 
 extent of power of constructing, 88. 
 
 company, when held entitled to arch over public street, id. 
 
 to make temporary bridge over canal, id. 
 wiien company may place scaffolding on land of another, 89. 
 time of completion, 132. 
 contract for performance of, 139 et seq. 
 test ot dependent and independent covenants, 140. 
 stipulation for company's engineer being judge of (juality, 
 quantity, &c. of works, 142, 143. 
 s s
 
 ccccx Index. 
 
 WORKS— (fo««inucrf.) 
 
 stipulations for forfeiture, 143 — 148. 
 
 how far a protection to company, in case of bankruptcy, 
 &c. of coDtractor, 144 — 146. 
 materials. Sac, when not in reputed ownership of con- 
 tractor, 146. 
 extent of lien, &c., given by above stipulations, 146 — 148. 
 
 WRIT. See Process. 
 
 Y. 
 YARD, 
 
 held to be included in term " house," in certificate, 76. 
 term when to be construed with reference to a building, 1 12. 
 when held not to be sutficiently connected with a building 
 to come within protection of act, 113. 
 
 YEARLY TENANCY. See Tenancy. 
 
 LONDON: 
 
 C. RDWORTH AND £OSS, PRIKTERS, BELL YAUD, 
 TEMPLE BAR. 
 
 f
 
 
 IFORNU 
 
 i
 
 UC SOUTHERN REGIONAL LIBRARY FACILITY 
 
 AA 000 857 034 3