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taining the consent of the surveyor of the road or Act '61, ■. 6. bridgemaster under whose charge such bridge shall be for the time being, or of the persons liable to the repair of such bridge; and in case such owner of the locomotive and surveyor of the road or bridge, or bridgemaster, shall differ in opinion as to the sufficiency of any bridge to sustain the transit of the locomotive, then the question shall be determined by an officer to be appointed, on the application of either party, by one of Her Majesty's principal Secretaries of State, whose certificate of sufficiency of such bridge shall entitle the owner of the locomotive to take the same over such bridge.

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7. (h) Where any turnpike or other roads, upon Damage which locomotives are or hereafter may be used, pass locomotives or are or shall be carried over or across any stream or to be made watercourse, navigable river, canal, or railway, by owners. means of any bridge or arch (whether stationary or moveable), and such bridge or arch, or any of the walls, buttresses, or supports thereof, shall be damaged by reason of any locomotive or any waggon or carriage drawn or propelled by or together with a locomotive passing over the same or coming into contact therewith, none of the proprietors, undertakers, directors, conservators, trustees, commissioners, or other person interested in or having the charge of such navigable river, canal, or railway, or the tolls thereof, or of such bridge or arch, shall be liable to repair or make good any damage so to be occasioned, or to make compensation to any person for any obstruction, interruption, or delay which may arise therefrom to the use of such bridge or arch, navigable river, canal or railway, but every such damage shall be forthwith repaired to the satisfaction of the proprietors, undertakers, direc

Act '61, s. 7. tors, conservators, trustees, commissioners, or other

persons as aforesaid respectively interested in or having the charge of such river, canal, or railway, or the tolls thereof, or of such bridge or arch, by and at the expense of the owner or owners or the person or persons having the charge of such locomotive at the time of the happening of such damage; and all such owner and owners, person and persons, having the charge of such locomotive as aforesaid, shall also be liable, both jointly and severally, to reimburse and make good as well to the proprietors, undertakers, directors, conservators, trustees, commissioners, and other persons interested in or having the charge of any such navigable river, canal, or railway, or the tolls thereof, or of such bridge or arch, as to all persons navigating on or using, or who but for such obstruction, interruption, or delay would have navigated on or used the same, all losses and expenses which they or any of them may sustain or incur by reason of any such obstruction, interruption, or delay, such losses and expenses to be recoverable by action at law, which action, in case of such proprietors, undertakers, directors, conservators, trustees, commissioners, or other persons so interested as aforesaid, may be brought in the name or names of their agent or agents, clerk or clerks for the time being, or by any person or persons legally authorized to act in their behalf.

(h) This section does not apply to county bridges, Reg. v. Kitchener, L. R. 2 C. C. 88, 34 J. P. 134. It is confined to bridges in the nature of private property.—Id.

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(i) Repealed by 41 & 42 Vict. c. 77, s. 30, so far as relates to England, and other provisions made on the same subject as to England. The substituted provisions, however, are only temporary. But, for reasons already mentioned, ante p. 233, sect. 3,

note (d), it has been considered unnecessary to print the section, Act '61, s. 8. although it still applies to Ireland.

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Exemption from tolls of

&c., now ex

10. All waggons, wains, carts, or carriages, as herein before described, drawn (k) by any locomotive, waggons, and loaded with any materials such as are now exempt empt under from toll under the provisions of any general or local or local Act. Act, shall be entitled to the same exemption as they would be if drawn by animal power.

(k) The waggons, &c., here referred to are those described in the 3rd par. sect. 1, ante, p. 231. That section, however, includes waggons, &c., "drawn or propelled" by a locomotive; whereas sect. 10 only applies to waggons, &c., "drawn" by a locomotive. Consequently waggons which are propelled by a locomotive seem to be excluded from the benefit of the exemption which would attach to them if they were drawn, instead of being propelled, by it.

any general

11. (1)

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(1) See note (g) to sect 5, ante, p. 234.

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comotives.

12. All the clauses and provisions of any general or Provisions local Acts relating to turnpike roads or highways shall, Acts relating so far as the same are not expressly altered or repealed Roads by or are not inconsistent with the provisions of this apply to loAct, apply to all locomotives propelled by other than animal power (m), and to all waggons, wains, carts, and carriages of any other description drawn (n) by such locomotive, and to the owners, drivers, and attendants thereof, in like manner as if drawn by animal power: provided (o) always, that the weight of every locomotive and the name of the owner or owners thereof, shall be conspicuously and legibly affixed thereon; and any owner not having affixed such weight and such name shall, upon conviction thereof

Act '61, s. 12. before two justices, forfeit any sum not exceeding £5; and any owner who shall fraudulently affix thereon any incorrect weight shall, upon conviction thereof, forfeit any sum not exceeding £10.

(m) The locomotives on which toll is imposed by sect. 1, are those "propelled by any power, containing within itself the machinery for its own propulsion." Sect. 12 extends beyond this, and applies the provisions of the Turnpike Acts to all locomotives whatsoever propelled "by other than animal power," no matter whether that power does or does not " contain within itself the machinery for its own propulsion." In point of fact, it seems difficult to understand how the power can contain within itself the machinery for its own propulsion, although one could have well understood how the locomotive might have contained such machinery.

A locomotive, propelled by its own steam power, having on it gear necessary for working a plough, passed through a turnpike gate on its way to a farm not occupied by the owner of the engine, and more than three miles from the gate, to drive a plough which, from its construction, could not be used without a steam engine and gear. And it was held that the locomotive was liable to toll, under sect. 1, being only exempt under 3 Geo. 4, c. 126, s. 32, like a horse, when it had not gone more than two miles on the road: Skinner v. Visger, L. R. 9 Q. B. 199, 24 J.P. 534.

The case of Reg. v. Matty, 22 J. P. 575, 27 L. J. m. 59, illustrates the state of the law before the passing of this section. In that case the keeper of a turnpike gate had been convicted of taking toll in respect of a moveable steam engine exclusively employed for the purpose of working a threshing machine. The steam engine was drawn by horses, and was following a threshing machine, also drawn by horses, and both were going along a turnpike road to a farm, to be employed there in threshing corn. Exemption was claimed for both as implements of husbandry, but the toll taker demanded and received the toll in respect of the steam engine, demanding none in respect of the threshing machine.

The sessions, having on appeal, confirmed the conviction, subject to a case, it was held by the Court of Queen's Bench, that as the steam engine was to be employed to work the threshing machine, it must be considered as part of the threshing machine, and therefore was free from toll, and consequently that the conviction was right.

And Lord Campbell, C. J., added, that "if the steam engine had been going along the road by itself for the sole purpose of working the threshing machine, it may be that it would also be exempt. If it had been going along the road for the purpose of being employed for some other purpose as well as

moving a threshing machine, it may be that it would not be Act '61, s. 12. exempt."

(n) The power to take toll under sect. 1, extends to waggons, &c. "drawn or propelled" by any locomotive, but this section only applies to those which are drawn by locomotives.

(0) Affixing the weight of the locomotive and the name of the owner appears to be a condition precedent to the application of the clauses and provisions of the general Turnpike Acts. The liability to the penalty for default seems to be a cumulative punishment which attaches to the owner independently of the non-applicability of such clauses and provisions. The name and residence of the owner are also required to be affixed to the locomotive under a penalty not exceeding £2 (See 28 & 29 Vict. c. 83, s. 7.)

tion in case

13. Nothing in this Act contained shall authorize Right of acany person to use upon a highway a locomotive engine of nuisance. which shall be so constructed or used as to cause a public or private nuisance; and every such person so using such engine shall notwithstanding this Act, be liable to an indictment or action, as the case may be, for such use, where, but for the passing of this Act, such indictment or action could be maintained.

14. This Act may be cited as the "Locomotive Short title. Act, 1861."

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(p) See note (g) to sect. 5, ante, p. 234.

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