Sect. 40.

Tramways to be removed in

(m) See sect. 35, note (†).

(n) But apparently not for damage done by his use of any motive power other than horses.

(0) See sects. 4 and 24.

(p) Defined in sect. 19.

(9) The policy of this section is rather peculiar. The "servant or other person" is to be "convicted" (a singularly inappropriate word) of trespass or damage by confession or by a credible witness (a now unnecessary addition which has been repealed in the similar section of Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), and then the licensee is to pay the damage ascertained by the justices up to 50l. If the damage is ascertained to be more than 501., who pays the balance? Presumably the person convicted. This is all without prejudice to the right of action against the licensee or any other person. But presumably, if judgment were given against the licensee in an action, after he had paid his 501., or fraction of 50l., on the proceedings before justices, he would be given credit for the amount he had so paid.

Discontinuance of Tramways.

41. If at any time after the opening of any tramway certain cases. in any district (r) for traffic (s) the promoters (†) discontinue (u) the working of such tramway, or of any part thereof, for the space of three calendar months (such discontinuance not being occasioned by circumstances beyond the control (a) of such promoters, for which purpose the want of sufficient funds shall not be considered a circumstance beyond their control (y)), and such discontinuance is proved to the satisfaction of the Board of Trade (≈), the said Board, if they think fit, may by order declare that the powers of the promoters in respect of such tramway or the part thereof so discontinued shall, from the date of such order, be at an end, and thereupon the said powers of the promoters shall cease and determine, unless the same are purchased by the local authority (r) in manner by this Act provided (a). Where any such order has been made, the road authority (r) of such district may at any time after the expiration of two months from the date of such order, under the authority of a certificate to that effect by the Board of

Trade, remove the tramway or part of the tramway Sect. 41. so discontinued (b), and the promoters shall pay to the road authority the cost of such removal and of the making good of the road by the road authority, such cost to be certified by the clerk for the time being, or by some other authorised officer of the road authority, whose certificate shall be final and conclusive; and if the promoters fail to pay the amount so certified within one calendar month after delivery to them of such certificate or a copy thereof, the road authority may, without any previous notice to the promoters (but without prejudice to any other remedy which they may have for the recovery of the amount), sell and dispose of the materials of the tramway or part of tramway removed (e), either by public auction or private sale, and for such sum or sums, and to such person or persons, as the road authority may think fit, and may out of the proceeds of such sale pay and reimburse themselves the amount of the cost certified as aforesaid and of the cost of sale, and the balance (if any) of the proceeds of the sale shall be paid over by the road authority to the promoters.

(r) Defined in sect. 3.

(s) See sect. 25 and note (m) thereto. the same as "public traffic."

(t) See sects. 4 and 24.

"Traffic" here must mean

(u) For other references to discontinuance or abandonment, see sects. 18 and 28.

(x) A failure on the part of lessees to work the tramway would be, in most cases, a circumstance beyond the control of the pro

moters, and therefore it would seem that the Board of Trade would have no power, in such a case, to issue an order under this section. (y) See sect. 42 and notes thereto.

(z) There is no provision here for a local inquiry to be held under sect. 63, as in the similar circumstances contemplated in sects. 35 and 42; but, no doubt, should the case arise, the Board of Trade would adopt this method of satisfying itself before issuing an order as here provided.

(a) That is, under sect. 43. These words, on which a great deal

Sect. 41.

of unnecessary stress has been laid, are discussed in note (q) to sect. 43. See also note (m) to sect. 43.

The road authority are not obliged to remove the tramway, but no one has any power to work it, apart from special legislation, except the lessees of a local authority which has purchased it within three months under sect. 43. If the road authority allowed the tramway to remain, and it was not transferred to the local authority, the property in the materials apparently would remain in the promoters. Quære whether it could be regarded as a nuisance.

(b) Compare these provisions as to removal and reinstatement with the similar provisions of sect. 28.

Where a special Act, by a remarkable provision, empowered a local authority to require the removal of a tramway at any time within five years, the Court refused an injunction to prevent their exercising such power, though no reason for its exercise was given by them, and the company had spent large sums on the tramway and on stables for their system, to which the piece of tramway in question provided the only access. It was held that the local authority had not given the company any pledge of permanency, and that the company had spent its money at its own risk. (Liverpool Tramways Co. v. Toxteth Park Local Board (1876), W. N. 145, more fully reported in "Times" Newspaper, April 13.)

(c) There ought to be some provision by which these materials could be used by the road authority for reinstating the road, if they wished, and their value taken into account against the amount due from the promoters. The Act, as it stands, only gives them power to sell, not to use, these materials. But perhaps the road authority could agree with the promoters that the value of the materials should be regarded as sufficient to pay the cost of restoring the road, and that the promoters should hand over the materials and be under no further liability. With this section generally compare Electric Lighting (Clauses) Act, 1899 (62 & 63 Vict. c. 19), Sched., ss. 63–68.

Proceedings

in case of

promoters.

Insolvency of Promoters.

42. If at any time after the opening of any tramway insolvency of in any district (d) for traffic (e), it appears to the local authority (d) or the road authority (d) of such district that the promoters (f) of such tramway are insolvent, so that they are unable to maintain such tramway, or work the same with advantage to the public, and such road authority makes a representation to that effect to the Board of Trade, the Board of Trade may direct an inquiry by a referee into the

truth of the representation (g), and if the referee shall Sect. 42. find that the promoters are so insolvent as aforesaid, the Board of Trade may, by order, declare that the powers of the promoters shall, at the expiration of six calendar months from the making of the order, be at an end, and the powers of the promoters shall cease and determine at the expiration of the said period, unless the same are purchased by the local authority in manner by this Act provided (h); and thereupon such road authority may remove the tramway in like manner and subject to the same provisions as to the payment of the costs of such removal, and to the same remedy for recovery of such costs, in every respect as in cases of removal under the next preceding section (i).

(d) Defined in sect. 3.

(e) See sect. 25 and note (m) thereto. "Traffic" here must be equivalent to "public traffic."

(f) See sects. 4 and 24.

(g) Such an inquiry is governed by sect. 63.

In In re Pontypridd and Rhondda Valleys Tramways Co., Ltd. (1889), 58 L. J. Ch. 536; 37 W. R. 570, the Court refused to restrain an inquiry to be held under this section, on the application of the liquidator of a company, which had in fact constructed and worked the tramway and had been given notice of the inquiry, on the grounds that (i.) the company were not "promoters," either as defined by the Act or by virtue of a purchase with the consent of the Board of Trade under sect. 44, and so had no interest in the inquiry, (ii.) the inquiry was not a proceeding against the company within the meaning of Companies Act, 1862 (25 & 26 Vict. c. 89), s. 87. Quare whether the Court has jurisdiction, under any circumstances, to restrain an inquiry duly instituted under this section. (h) That is, under sect. 43. The same words occur in sect. 41. They are discussed in note (q) to sect. 43, post, p. 183.

(i) See sect. 41 and notes (a) and (c) thereto.

Winding-up and Enforcement of Securities.-A tramway company may be wound up in the ordinary way, if registered under the Companies Acts (as even a railway may be (In re Ennis and West Clare Railway Co. (1879), 3 L. R. I. 187)), or it may be wound up as an unregistered company, if it consists of more than seven members and is not registered under the Companies Acts, by virtue of sect. 199 of Companies Act, 1862 (25 & 26 Vict. c. 89), inasmuch as it is not a railway company within the exception contained in

Sect. 42.

that section. (In re Brentford and Isleworth Tramways Co. (1884), 26 Ch. D. 527; 53 L. J. Ch. 624; In re Borough of Portsmouth (Kingston, Fratton and Southsea) Tramways Co., [1892] 2 Ch. 362; 61 L. J. Ch. 462.) This principle applies also to tramway companies of more than seven members incorporated by Order in Council under the Tramways (Ireland) Acts. (In re Portstewart Tramway Co., Ex parte O'Neill, [1896] 1 I. R. 265.)

The fact that the preamble of the company's Act states that the construction of the tramway would be to the public advantage does not preclude a winding-up order (In re Borough of Portsmouth, &c. Tramways Co., ub. sup., at p. 367; In re Barton-upon-Humber and District Water Co. (1889), 42 Ch. D. 585; 58 L. J. Ch. 613), though the circumstance will make the Court more careful not to make the order until it is assured that such an order is the best or only way out of the company's difficulties. (In re Exmouth Docks Co. (1873), L. R. 17 Eq. 181; 43 L. J. Ch. 110; In re Company or Fraternity of Free Fishermen of Faversham (1887), 36 Ch. D. 329; 57 L. J. Ch. ̧ 187 (C. A.).) Thus orders have been made for winding-up a statutory ferry company (In re Isle of Wight Ferry Co. (1865), 2 H. & M. 597; 34 L. J. Ch. 194), a statutory telegraph company (In re Electric Telegraph of Ireland (1856), 22 Beav. 471; 24 L. J. Ch. 614), a statutory canal company (In re Proprietors of the Basingstoke Canal (1866), 14 W. R. 956), and a statutory water company (In re Barton-upon-Humber and District Water Co., ub. sup.). Neither will an order be refused because the undertaking could not be sold without an application to Parliament; such an application may be sanctioned in chambers. (In re Barton-upon-Humber and District Water Co., ub. sup.; In re Bradford Navigation Co. (1870), L. R. 10 Eq. 331; 39 L. J. Ch. 161; appeal dismissed on a preliminary objection, L. R. 5 Ch. 600; 39 L. J. Ch. 733.) In the case of a tramway company it might be possible to avoid an application to Parliament by a sale with the consent of the Board of Trade under sect. 44. A sale to directors of the company was approved in In re Yarmouth and Gorleston Tramways (1881), 25 So. J. 794. The question of the application of the deposit is discussed in note (g) to sect. 12, and in the notes to the Parliamentary Deposits and Bonds Act, 1892 (post, p. 297). The application for the order may be made by the company itself (In re Bradford Navigation Co., ub. sup.), by other persons entitled in the ordinary way to ask for such an order, and by debenture-holders in virtue of their rights as ordinary creditors, in spite of their previous exercise of their remedies as debenture-holders. (In re Borough of Portsmouth, &c. Tramways Co., ub. sup.; In re Portstewart Tramway Co., ub. sup.)

On the other hand, it is now settled by Marshall v. South Staffordshire Tramways Co., [1895] 2 Ch. 36; 64 L. J. Ch. 481, that debenture-holders are, in the event of default by the company, entitled only to the appointment of a receiver of the undertaking of