Right of action in case of

nuisance.

prietors, 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.

Nothing in this Act contained shall authorize any person to use upon a highway a locomotive engine which shall be so constructed or used as to cause a public or private nuisance; and 24 & 25 Vict. 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.

c. 70, s. 13.

Saving as to actions at law.

28 & 29 Vict.

c. 83, s. 12.

Provisions of general Acts relating to turnpike roads to apply to locomotives. 24 & 25 Vict. c. 70, s. 12.

Nothing in this Act contained shall authorize any person to use a locomotive which may be so constructed or used as to be a public nuisance at common law, and nothing herein contained shall affect the right of any person to recover damages in respect of any injury he may have sustained in consequence of the use of a locomotive.

An action was maintained by a person who had sustained an injury through his horse being frightened by a traction engine used on a highway under 24 & 25 Vict. c. 70, the jury finding that the engine was likely to frighten horses, and that the defendant knew it, and semble the scienter is not material. (1) In instructing the jury, Erle, C. J., said, "The plaintiff is entitled to your verdict, if the engine was calculated by its noise or appearance to frighten horses, so as to make the use of the highway dangerous to persons riding or driving horses. For the defendant has clearly no right to make a profit at the expense of the security of the public."

The provisions relating to tolls on locomotives are omitted. as not being applicable to local authorities; but it is enacted that all the clauses and provisions of any general or local Acts relating to turnpike roads or highways shall, so far as the same are not expressly altered or repealed by or are not inconsistent with the provisions of this Act., apply to all locomotives propelled by other than animal power, and to all waggons, wains, carts, and carriages of any other description drawn by such locomotive, and to the owners, drivers, and attendants thereof, in like manner as if drawn by animal power: provided always, that the weight of every locomotive, and the name of the owner (1) Watkins v. Reddin, 2 F. & F. 629.

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 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.

Every penalty imposed by the provisions of this Act shall, in How penalIreland, be recoverable before a justice or justices of the peace ties to be in petty sessions, subject and according to the provisions of the recovered and applied Petty Sessions (Ireland) Act, 1851, and any Act amending the in Ireland. same, and shall be applied according to the provisions of the 28 & 29 Vict. Fines (Ireland) Act, 1851, and any Act amending the same. c. 83, s. 10.

§ 3. TRAMWAYS.

Under the Tramways Act 1870, Local Boards, as the local 33 & 34 Vict. authority under that Act (Sch. a, part 1.), may obtain a pro- c. 78, s. 4. visional order from the Board of Trade, authorizing the construction by them of tramways within their district. They Ib. s. 19.

cannot however work the tramway themselves after it has been made, but may lease it for a term of years; or they may leave the tramway open to be used by the public and may in respect of such user demand and take the authorized tolls and charges.

BOARD OF TRADE RULES.

On the 9th May, 1871, the Board of Trade, under the powers conferred upon them by Section 64 of the Tramways Act, 1870, made the following rules with respect to Provisional Orders.

1. Promoters of tramways desiring incorporation should register them- Incorporation. selves under the Companies Act, 1862.

2. The publication of notices required by section 6 of the Tramways Act, Notices and 1870, and the deposit of documents required by the same section, are to be deposit of made in manner prescribed by Parts I., II., III. respectively of schedule B. documents. to the same Act. Provided that the documents required by Part II. of the said schedule, to be deposited for public inspection in the office of the parish clerk of every parish, shall in the case of any extra-parochial place, be deposited with the parish clerk of some parish immediately adjoining thereto, or, in the case of any place within the limits of the Metropolis, as defined by the 18th and 19th Vict. cap. 120, intituled "An Act for the better local management of the Metropolis," except the City of London, with the clerk of the vestry of each parish in Schedule A, and with the clerk of the district Board of parishes in Schedule B, of the said Act. In every case in which the proposed works are intended to be made in or through one or more parishes or districts, the deposit of a copy of so much only of the plans and sections as relates to each parish or district in or through which the work is intended to be made shall be necessary.

3. The advertisements must state that all persons desirous of making any representation to the Board of Trade, or of bringing before them any objection respecting the application, may do so by letter, addressed to the Assistant Secretary of the Railway Department of the Board of Trade, on or before the 15th January next ensuing.

4. Where a tramway is proposed to be so laid that for a distance of thirty feet or upwards a less space than nine feet and six inches shall intervene between the outside of the footpath on either side of the road and

Board of
Trade rules.

Plans and sections.

Consent of local and road authorities.

Purchase of land.

General instructions.

the nearest rail of the tramway, the advertisement of the promoters' intention to make application for a Provisional Order, in pursuance of section 6 of the Tramways Act, 1870, and the notices required to be posted in the streets in accordance with the next succeeding rule, shall contain a description of each such place; and the owners and occupiers of houses, shops, or warehouses abutting upon the part of the road where such less space shall intervene, if they dissent from the tramway being so laid, may express their dissent by a statement in writing addressed to the Assistant Secretary, Railway Department, Board of Trade, and made at any time before the 15th January next following the months in which notice of the application to make the tramway is given, and a statement to that effect shall be contained in each of the aforesaid street notices.

5. The promoters must comply with the requirements of the following Standing Order of the House of Commons (No. 16) of 1871:

"That in cases of Bills for laying down any street tramway, the notices and plans shall set forth, specify, and indicate whether it is proposed to lay such tramway along the centre of any street, and if not along the centre then on which side of and at what distance from an imaginary line drawn alone the centre of such street. In the months of October and November, or one of them, immediately preceding the application for any Bill for laying down a street tramway, notice thereof shall be posted for fourteen consecutive days in the street or streets along which it is proposed to lay such tramway, in such manner as the authority having the control of such street or streets shall direct; and if after application to such authority no such direction shall be given, then in some conspicuous position in such street or streets."

6. The plans and sections to be deposited, in pursuance of Schedule (B), Part II., to the Tramways Act, 1870, must be such plans and sections as would be required by the Standing Orders of the House of Commons, if the promoters, instead of applying for a Provisional Order, were proceeding by private Bill; and on the plans all tidal waters are to be coloured blue.

7. A list of the local authorities through whose districts the proposed tramway will pass must accompany each application; and if any such district is or forms part of a highway district, under the provisions of "the Highway Acts," a statement to that effect must accompany the application, and there must also be given a description of the road authority of any district in which there is a road authority distinct from the local authority.

8. Where an application is made by any local authority, it must be accompanied by a certified copy of the resolution approving of the intention to make the application, together with a copy of the notice convening the special meeting to consider it. Proof must also be furnished that the requisite proportion of members constituting the local authority were present and voted at the meeting, as prescribed in Part III. of Schedule A. to the Tramways Act, 1870."

9. Where an application is made by any promoters, not being the local authority of the district in which the tramway is proposed to be laid, evidence of the consent required by section of the Tramways Act, 1870, must be giving before the application can be entertained. Such evidence should be given by furnishing a certified copy of the resolution passed at a meeting of the local or road authority, as the case may be, at which the application was approved, together with a copy of the notice convening the meeting, which notice must contain a statement that the subject of the proposed tramway will be brought before the meeting.

10. Where the promoters propose to take any lands for the purpose of a tramway, contracts for the purchase of all the lands required must be produced at the time when the proofs of compliance with the provisions of the Tramways Act concerning deposit and publication are produced.

II. The draft Provisional Order must be printed on one side of the page of paper, so as to leave the back of the page blank, and any schedule annexed must begin a new page. The name of the promoters, or of their agents, must be printed on the outside of every draft Provisional Order.

12. The regulations below, Nos. 16 to 18 inclusive, must be printed in Board of the form of a notice at the end of every draft Provisional Order. Trade rules.

13. The promoters will be required to pay a fee of 35. towards the expenses of the Provisional Order at the time of the deposit of the draft Provisional Order. This payment will not be taken to cover the cost of inquiries or other matters arising out of the application; with respect to costs in such matters, security must be given from time to time by the promoters as the Board of Trade may require.

14 The draft Provisional Order, which is to be deposited at the Board of Trade on or before the 23rd December, must be deposited in triplicate. Where the promoters are a company incorporated under The Companies Act, 1862, the draft deposited at the Board of Trade must be accompanied by a printed copy of the Memorandum of Association, Articles of Association, and any registered special resolution of the Company; and when they are a Company incorporated in any other manner, the draft must be accompanied by a copy of every deed or instrument of settlement or incorporation, or Act of Parliament relating to the Company.

15. The promoters must be prepared to prove compliance with the provisions of the Tramways Act concerning deposit and publication by the 10th January. Six days notice will be given of the day and hour at which the promoters are to attend for the purpose at the Board of Trade. Printed forms of proof will be supplied, which should be filled up by the promoters, and brought with the requisite documents to the Board of Trade at the time fixed for proof.

16. Any objections to the Provisional Order which it is intended to urge on the Board of Trade must be sent in to that office before the 15th January. A copy of such objections must also be sent at the same time to the promoters; and in forwarding the objections to the Board of Trade the objectors, or their agents, should state that this has been done.

17. The Bill for confirming Provisional Orders will be brought in as early in the session as possible. All preliminary questions must, however, be determined before the first March.

18. All memorials, objections, and other documents sent to or deposited with the Board of Trade must be on common foolscap paper.

19. After the Provisional Order is ready, and before the same is delivered Deposit. by the Board of Trade, the promoters shall pay as a deposit a sum of money not less than four per centum on the amount of their estimate of the expense of the construction of the tramway, as follows; namely, Where the tramway or any part thereof will be situate in England,— into the Bank of England in the name and with the privity of the Accountant General of the Court of Chancery in England: Where the tramway will be situate wholly in Scotland,—either into the Bank of England in manner aforesaid, or (at the option of the promoters) into a bank in Scotland established by Act of Parliament or Royal Charter, in the name and with the privity of the Queen's Remembrancer of the Court of Exchequer in Scotland.

20. The Board of Trade may issue their warrant to the promoters for such payment into court, which warrant shall be a sufficient authority for the persons therein named, or the majority or survivors of them, to pay the money therein mentioned into the bank therein mentioned, in the name and with the privity of the officer therein mentioned, and for that officer to issue directions to such bank to receive the same, to be placed to his account there ex-parte the tramway therein mentioned, according to the method (prescribed by statute, or general rules or orders of court or otherwise) for the time being in force respecting the payment of money into the said courts respectively, and without fee or reward.

Provided, that in lieu, wholly or in part, of the payment of money, the promoters may bring into court as a deposit an equivalent sum of bank annuities, or of any stocks, funds, or securities on which cash under the control of the respective court is for the time being permitted to be invested, or of exchequer bills (the value thereof being taken at the price at which the promoters originally purchased the same, as appearing by the

Board of

Trade rules.

broker's certificate of that purchase); and in that case the Board of Trade shall vary their warrant accordingly by directing the transfer or deposit of such amount of stocks, funds, securities, or exchequer bills by the persons therein named.

21. At any time when the office of the Accountant General of the Court of Chancery is closed, a deposit under these rules may nevertheless be made, in the manner and subject to the regulations provided with respect to deposits by Companies by sect. 88 of the Lands Clauses Consolidation Act, 1845.

22. Where money is so paid into the Court of Chancery, the court may, on the application of the persons named in the warrant of the Board of Trade, or of the majority or survivors of them, order that the same be invested in such stocks, funds, or securities as the applicants desire and the court thinks fit.

23. In the subsequent provisions of these Rules, the term "the deposit fund" means the money deposited, or the stocks, funds, or securities in which the same is invested, or the bank annuities, stocks, funds, securities, or exchequer bills transferred or deposited, as the case may be; and the term "the depositors" means the persons named in the warrant of the Board of Trade authorizing the deposit, or the majority or survivors of those persons, their executors, administrators, or assigns.

24. The court in which the deposit is made shall, on the application of the depositors, order the deposit fund to be paid, transferred, or delivered out to the applicants, or as they direct, if, within the time of the Provisional Order prescribed, and if none is prescribed, then within two years from the commencement of the operation of the Provisional Order, the promoters thereby empowered to make the tramway complete it, and open it for public traffic: Provided, that if within such time as aforesaid any portion of a line of tramway authorized by a Provisional Order is opened for public traffic, the said court shall, on production of a certificate, purporting to be signed by a secretary or assistant secretary of the Board of Trade, that such portion has been opened, and specifying the proportion of the deposit fund to be so paid, order a proportionate amount of the deposit fund to be paid to the depositors or as they direct.

25. If the promoters empowered by the Provisional Order to make the tramway do not within the time in the Provisional Order prescribed, and if none is prescribed, then within two years from the commencement of the operation of the Provisional Order, complete the tramway, and open it for public traffic, then and in every such case the deposit fund, or so much thereof as shall not have been repaid to the depositors, shall from and after the expiration of the time aforesaid, be forfeited to Her Majesty, and shall accordingly be paid, transferred, or delivered out to or for the account of Her Majesty's Exchequer, in such manner as the court in which the deposit is made thinks fit to order, on the application of the solicitor of Her Majesty's Treasury, on notice to such parties (if any) as the court thinks fit; and the deposit fund, when so paid, transferred, or delivered, or the proceeds thereof, shall be carried to and form part of the Consolidated Fund of the United Kingdom: Provided that if the promoters are a company, and if before the deposit fund is repaid such company is ordered to be wound up, the said court may order the deposit fund, or so much thereof as the court may think fit, to be paid to the liquidator or liquidators as part of the assets of the company.

26. The depositors shall be entitled to receive payment of the interest or dividends from time to time accruing on the deposit fund while in court; and the court in which the deposit is made may from time to time, on the application of the depositors, make such order as seems fit respecting the payment of the interest or dividends accordingly.

27. If either House of Parliament refuse to confirm any Provisional Order in respect whereof a deposit has been made under these rules, or authorize a portion only of any tramway comprised in such Order, or if any such Provisional Order be withdrawn before the same is confirmed by Parliament, the court shall, upon production of a certificate to that effect