owners or reputed owners, lessees or reputed lessees [and occupiers] Sect. 9. (omitted in the Lords Order) of all houses, shops or warehouses

abutting on the part of the street or road affected.

If no such dissent has been so expressed, an Order dispensing with the space of 9 ft. 6 in. is perfectly good. (Edinburgh Street Tramways Co. v. Black (1873), L. R. 2 H. L. Sc. 336, 345 (per Lord Hatherley); 11 M. (H. L.) 57, 61; Paterson, 2068, 2072, reversing the Lord Ordinary and the First Division of the Inner House (1873), 11 M. 418.) In this case the facts were as follows:-The Edinburgh Tramways Company were authorised by their special Act to lay a double line of tramways in the street known as the North Bridge, which in its widest part was not broad enough to allow of a space of 9 ft. 6 in. between the kerb and the rail. The special Act incorporated Parts II. and III. of the present Act, but not Part I., and the only way in which that Part might be said to be incorporated was through the confirmation by sect. 44 of the special Act of an agreement made between the local authority and the promoters, which provided, inter alia, that all the provisions of the present Act were to apply as fully as if the special Act had been a Provisional Order obtained under the present Act. The frontagers having applied for and obtained an interdict against the construction of any line of tramway within the 9 ft. 6 in. limit, the interdict was recalled by the House of Lords on appeal, and it was held that the special Act required the tramway to be constructed in accordance with the deposited plans and sections, and that, whatever the effect of the agreement was, it could not override this obligation.

It was previously decided upon the same Act that two private individuals (who were, in fact, omnibus and cab proprietors) had a right to complain of a violation by the tramway company of a section which provided that where there was a double line, and a space of less than 9 ft. 6 in. was left between the nearest rail and the footpath, the company should construct a cross-over road connecting one line with the other, and that the existence of provisions for reference in the Act and in an agreement scheduled thereto, and sect. 33 of Tramways Act, 1870, did not affect this right. (Adamson v. Edinburgh Street Tramways Co. (1872), 10 M. 533.)

A similar provision as to cross-over roads will be found in the model Order, post, p. 430. It also contains a provision that the 9 ft. 6 in. rule shall apply to cross-over roads, passing-places, sidings, &c. in general.

Under such a provision and another section similar to sect. 6 (a) of the model Order, post, it was held that promoters had no right to make a connecting line not shown on the deposited plans and less than 9 ft. 6 in. from the outside of the footpath, and they were ordered to remove the line. (Wilkinson and Marshall v. Newcastleupon-Tyne Corporation (1902), 18 T. L. R. 332.)

Sect. 9.

Nature of traffic on

tolls to be

specified in Provisional

In the Court of Appeal at Montreal it has been held that a street railway company, authorised by statute to use or occupy any part or such parts of certain highways as may be required for their purposes, exceeds its powers by laying the track at the side of the highways within 6 ft. of the adjoining property, the value of which is thereby greatly diminished; that the right of passage given to the company should be exercised ex aequo et bono and in accordance with the use and destination of the highway, and so as to cause as little inconvenience as is compatible with the exercise of the right to the public and the adjoining proprietors. (Ross (A.-G.) v. Montreal City Passenger Railway Co. (1879), 24 Lower Canada Jurist, 60; 10 Revue Légale, 27; 2 Legal Notes, 338.)

10. Every such Provisional Order shall specify the tramway and nature of the traffic (2) for which such tramway is to be used, and the tolls and charges which may be demanded and taken by the promoters (y) in respect of the same, and shall contain such regulations relating to such traffic and such tolls and charges as the Board of Trade shall deem necessary and proper (2).

Order.

(x) The word "traffic" is general, and promoters are therefore at liberty to carry not only passengers but also goods and merchandise of all descriptions on terms approved by the Board of Trade.

For the conveyance of mails by tramways see Conveyance of Mails Act, 1893 (56 & 57 Vict. c. 38), post, p. 304. It has been held in Ireland that a steam tramway authorised by a Provisional Order under the Tramways (Ireland) Act, 1860, confirmed by a special Act, was not a "railway" within the meaning of the Post Office (Parcels) Act, 1882 (45 & 46 Vict. c. 74), and that the conveyance of post office parcels and mails upon it was regulated solely by the special Act. (Clogher Valley Tramway Co., Ltd. v. R. (1891), 30 L. R. I. 316.)

(y) See sects. 4 and 24.

(~) The model Order contains clauses and a schedule regulating the amount of tolls to be taken for passengers, animals and goods, the allowance of passengers' luggage, cheap fares for workmen, and the periodical revision of tolls (post, p. 440). Compare Light Railways Act, 1896, s. 11 (j), and notes thereto, and the model Light Railway Order, post, p. 618.

There is a tendency to utilise tramways in the future to a greater extent for the carriage of goods. This may lead to modifications in the scale of tolls usually prescribed, and to additional regulations, e.g., against undue preference, as to which there is at present, in the case of tramways, no legal provision. See further as to tolls

and charges, sect. 45 and the notes thereto.

Order.

11. The costs of and connected with the preparation Sect. 11. and making of each Provisional Order (a) shall be paid Costs of by the promoters (b), and the Board of Trade may require the promoters to give security for such costs. before they proceed with the Provisional Order (c).

(a) These costs are to be taxed on the Chancery, not on the Parliamentary scale, inasmuch as the Act confirming the Provisional Order is procured by the Board of Trade and not by the promoters, and there is no proceeding in Parliament with which the promoters have really anything to do directly. (In re Morley (1875), L. R. 20 Eq. 17.) For a discussion of the position of persons claiming costs against company or promoters in connection with a special Act, see note (f) to sect. 24.

(b) See sects. 4 and 24. Sect. 20 provides for the raising of costs and expenses where a local authority are the promoters.

(c) Compare Board of Trade Rule XV. (7), p. 331.

to deposit

on estimate

bank.

t

12. After a Provisional Order is ready, and before Promoters the same is delivered by the Board of Trade, the 41. per cent. promoters (d), unless they are a local authority, shall in within the prescribed (e) time and in the prescribed manner, and subject to the prescribed conditions as to interest, repayment, or forfeiture, pay, as a deposit, into the prescribed bank, the sum of money prescribed, which shall not be less than four pounds per centum (f) on the amount of the estimate by the promoters (d) of the expense of the construction of the tramway, or deposit in such bank any security of the prescribed nature the then value of which is not less than such sum of money (g).

(d) See sects. 4 and 24.

(e) By the Board of Trade Rules (sect. 3). The appropriate rules are-XX. (amount and method of deposit),

XXI. (penalty for non-completion of tramways where no
deposit),

XXII. (application of deposit),

XXIII. (release of deposit), and

XXIV. (miscellaneous).

(f) By Rule XXI. promoters who are possessed of a tramway already open for public traffic, and which has during the previous year paid dividends on its ordinary share capital, need not make a

Sect. 12. deposit. By Rule XX. promoters (unless they are a local authority) shall, if they are not possessed of such a tramway, pay a deposit of not less than five per cent. of the estimate. Compare Standing Order 57, post, p. 395.

(g) Under the old Board of Trade Rules, where the line was not completed and opened within the due time, the deposit, or the penalty where there was no deposit, was to be applied in compensating road authorities as the Court might think fit, and the balance was to be forfeited to the Crown, or, at the discretion of the Court, if the promoters were a company which was being wound up or was under a receiver, might be wholly or in part paid to the liquidator or receiver, or be otherwise applied as assets of the company for the benefit of the creditors. It was held that the intention of the rules was (1) that the promoters were not by any subterfuge or device to get the deposit money back again, either directly or indirectly, if the tramway was not completed; (2) that the creditors only were to be considered and not the shareholders; (3) that the only creditors who were to be considered were meritorious creditors, that is, persons who were not responsible for what had happened in any shape or way. If there were no such creditors, and so far as the money was not paid to road authorities, the deposit, or the balance of the deposit, was forfeited to the Crown, in one sense as a fine, and in another sense as a compensation to the public for the injury done to it by the non-completion of the tramway. (In re Lowestoft, Yarmouth and Southwold Tramways Co. (1877), 6 Ch. D. 484; 46 L. J. Ch. 393.) This case followed in part In re Bradford Tramways Co. (1876), 4 Ch. D. 18; 46 L. J. Ch. 89 (C. A.), which was a case under a section of a special Act couched in terms similar to those of the Rules, and decided that no part of the deposit could be applied as assets of the company for the payment of creditors until any funds arising from calls on the shareholders were exhausted. In re Lowestoft, Yarmouth and Southwold Tramways Co., Ltd., ub. sup., was followed, as to meritorious and non-meritorious creditors, in In re Birmingham and Lichfield Junction Railway Co. (1885), 28 Ch. D. 652; 54 L. J. Ch. 580.

In In re West Donegal Railway Co. (1890), 24 Ir. L. T. R. 42, it was held that the completion of a light railway under a subsequent Light Railway Order did not prevent the forfeiture of a deposit made in respect of it under a previous Act, it not having been completed under that Act.

See also In re London and County Tramways Co., Ltd. (1875), W. N. 49; L. J. Notes of Cases, 39; and In re Tynemouth Borough Tramway Co., Ltd. (1875), 33 L. T. 8. In the latter case the Court, in its discretion under the old Tramways Rule XXVI., ordered the deposit to be paid to the official liquidator for the benefit of the creditors, though there was uncalled capital which exceeded the amount of the debts. A similar order was made where

there was no uncalled capital in In re Common Road Conveyance Co., Sect. 12. Ltd. (not reported).

The matter is now governed by Parliamentary Deposits and Bonds Act, 1892 (55 & 56 Vict. c. 27), to which the terms of the Board of Trade Rules now in force conform, and which is set out, with notes of the decisions upon it, post, p. 297.

of Provi

as in sche

13. When a Provisional Order has been made as Publication aforesaid and delivered to the promoters (h), the pro- sional Order moters shall forthwith publish the same by deposit dule. and advertisement, according to the regulations contained in Part Four of the schedule (B.) to this Act (i).

(h) See sects. 4 and 24.

(i) See Board of Trade Rule XIX. (p. 333). By Rule XVIII. (p. 332), if any alteration of the deposited plan and section has been made with the approval of the Board of Trade before the Order is granted, a copy showing the alteration must be deposited before the Order is introduced into a Confirmation Bill.

of Provisional

Act of Par

14. On proof to the satisfaction of the Board of Confirmation Trade of the completion of such publication as afore- Order by said (k), the Board of Trade shall, as soon as they liament. conveniently can after the expiration of seven days from the completion of such publication, procure a Bill to be introduced into either House of Parliament in relation to any Provisional Order which shall have been published as aforesaid not later than the twentyfifth of April in any year, for an Act to confirm the Provisional Order, which shall be set out at length in the schedule to the Bill; and until confirmation, with or without amendment, by Act of Parliament, a Provisional Order under this Act shall not have any operation (1).

If while any such Bill is pending in either House of Parliament a petition is presented against any Provisional Order comprised therein, the Bill, so far as it relates to the Order petitioned against, may be referred to a Select Committee, and the petitioner shall be allowed to appear and oppose as in the case of a Bill for a special Act (m).