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 defender, by leave of the court where such action shall be pending, at any time before the record is closed 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 defenders are allowed to pay money into court.

1845.

RECOVERY OF DAMAGES AND PENALTIES.

And with respect to the recovery of damages not specially provided for, and to the determination of any other matter referred to the sheriff or to justices, be it enacted as follows:

CXXXII. Provision for damages not otherwise provided for.-In all cases where any damages, charges, or expenses are by this or the special Act, or any Act incorporated therewith, directed to be paid, and the method of ascertaining the amount or enforcing the payment thereof is not provided for, such amount, in case of dispute, shall be ascertained and determined by the sheriff; 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 poinding and sale of the goods of the company or other party liable as aforesaid, and the sheriff shall, on application, issue his warrant accordingly.

CXXXIII. Distress, etc., against the treasurer.-If sufficient goods of the company cannot be found whereon to levy any such damages, charges, or expenses payable by the company, the same may, if the amount thereof do not exceed twenty pounds, be recovered by poinding and sale of the goods of the treasurer of the company, and the sheriff, on application, shall issue his warrant accordingly; but no such poinding and sale shall be executed against the goods of such treasurer unless seven days' previous 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 or poinding and sale as aforesaid, he may retain the amount so paid by him, and all expenses occasioned thereby, out of any money belonging to the company coming into his custody or control, or he may sue the company for the same.

CXXXIV. Method of proceeding before the sheriff or justices in questions of damages. Where in this or the special Act, or any Act incorporated therewith, any question of damages, charges, expenses, or other matter is referred to the determination of any sheriff or justices, it shall be lawful for the sheriff or any justice, upon the application of either party, to order the other party to appear before such sheriff if the order shall be issued by the sheriff, or before two justices if the order shall have been issued by a justice, 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 sheriff 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 expenses of every such inquiry shall be in the discretion of such sheriff or justices, and he or they shall determine the amount thereof.

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CXXXV. Publication of penalties.-The company shall publish the short [CXLIII.] particulars of the several offences for which any penalty is imposed by 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

8 & 9 VICT. Cap. 33.

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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 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 herein before required.1

1 See Cal. R.C. v. Ramsay (1897), 24 R.I.C. 48, 34 S.L.R. 526.

CXXXVI. Penalty for defacing boards used for such publication.-If any person pull down or injure any board put up or affixed as required by this or the special Act, or any Act incorporated therewith, 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.

CXXXVII.-Penalties to be summarily recovered before the sheriff or two justices.-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 otherwise provided for, may be recovered by summary proceeding before the sheriff or two justices; . . . 1and upon the appearance of the party complained against, or in his absence after proof of the due service of such order, it shall be lawful for any sheriff or two justices to proceed to the hearing of the complaint; 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 sheriff or justices to convict the offender, and upon such conviction to adjudge the offender to pay the penalty or forfeiture incurred, as well as such expenses attending the conviction as such sheriff or justices shall think fit.2 1 Preceding words omitted by 55 & 56 Vict. c. 19.

2 See London and Brighton R.C. v. Watson (1879), 4 C.P.D. 118; and, as to instance, G.N.S.R. v. Anderson (1897), 35 S. L.R. 40.

CXXXVIII. Penalties may be levied by poinding and sale.-If forthwith the amount of the penalty or forfeiture and expenses be not paid, the amount of such penalty and expenses shall be levied by poinding and sale.1

1 Thus amended by 55 & 56 Vict. c. 19.

CXXXIX. Imprisonment in default of sufficient poinding.—It shall be lawful for any such sheriff or justices to order any offender so convicted as aforesaid to be detained and kept in safe custody until return can be conveniently made to the warrant of poinding and sale to be issued for levying such penalty or forfeiture and expenses, unless the offender give sufficient security, by way of recognisance or otherwise, to the satisfaction of the sheriff or justices, for his appearance before him or them 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 poinding and sale it shall appear to the sheriff or justices, by the admission of the offender or otherwise, that no sufficient poinding and sale can be had within the jurisdiction of such sheriff or justices whereon to levy such penalty or forfeiture and expenses, he or they may, if he or they think fit, refrain from issuing such warrant; 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 sheriff or justices, then such sheriff or justices 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 expenses be sooner paid and satisfied.

CXLII. Application of penalties.-The sheriff or justices by whom any such penalty or forfeiture shall be imposed, where the application thereof is not otherwise provided for, may award not more than one half thereof to the informer, and shall award the remainder to the kirk session, or treasurer or collector of the funds for the poor, of the parish in which the offence shall have been committed, for the benefit of the poor of such parish.1

1 See Gl. City and Dist. R. C. v. Meldrum's Trs. (1884), 11 R.J.C. 59. CXLIII. Penalties to be sued for within six months.1

CXLIV. Damage to be made good in addition to penalty.-If through any act, neglect, or default on account whereof any person shall have incurred any penalty imposed 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 damage shall, in case of dispute, be determined by the sheriff or justices by whom the party incurring such penalty shall have been convicted; and on non-payment of such damages, on demand, the same shall be levied by poinding and sale, and such sheriff or justices shall issue his or their warrant accordingly.

CXLV.1 Penalty on witnesses making default.

Repealed by 55 & 56 Vict. c. 19.

CXLVI. Transient offenders.—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 be found committing any offence against the provisions of this or the special Act, or any Act incorporated therewith, and whose name and residence shall be unknown to such officer or agent, and convey him with all convenient despatch before the sheriff or a justice, without any warrant or other authority than this or the special Act; and such sheriff or justice shall proceed with all convenient despatch in the matter of the complaint against such offender.1

1 See Barry v. M.R. (1867), I.R. 1 C. L. 130.

CXLVII. Proceedings by sheriff need not be in writing.-Any sheriff to whom any application is authorised to be made, and before whom any judicial proceeding shall in consequence take place or become necessary under or by virtue of this or the special Act, or any Act incorporated therewith, shall and he is hereby authorised and required summarily to call before him all parties who appear to him to be interested therein, and to proceed forthwith to hear vivá voce, and pronounce judgment regarding the matters mentioned in such application or proceedings, or to do the several matters and things required by this Act to be done by him, without waiting the ordinary course of the roll of causes before him, and without written pleadings or a written record, or reducing any evidence which may be led by either of the parties to writing, unless and except where the said sheriff shall consider that the matters mentioned in such application or proceedings can with more advantage be decided with written pleadings and with a written record, in which case he

L

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8 & 9 VICT. Cap. 33.

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shall proceed to make up a record, and bring the said matters to a conclusion with all convenient despatch; and the orders and judgments of the said sheriff when pronounced without a record shall be final and conclusive, and not subject to review by suspension or advocation or to reduction on any ground whatever.

CXLVIII.1 Form of conviction.

1 Repealed by 55 & 56 Vict. c. 19.

CXLIX. Proceedings not to be quashed for want of form.-No proceeding in pursuance of this or the special Act, or any Act incorporated therewith, shall be . .1 removed by suspension or otherwise into any superior court.2 1 Preceding words omitted by 55 & 56 Vict. c. 19.

2 As to review generally, see Law of Rlys. pp. 881-883.

CL. Power of appeal to sheriff. In all cases which may come before any sheriff substitute under this or the special Act, or any Act incorporated therewith, in which written pleadings shall have been allowed, and a written record shall have been made up, and where the evidence which has been led by the parties shall have been reduced to writing, but in no other case whatever, it shall be competent for any of the parties thereto, within seven days after a final judgment shall have been pronounced by such sheriff substitute, to appeal against the same to the sheriff of the county, by lodging a minute of appeal with the sheriff clerk of such county or his depute; and the said sheriff shall thereupon review the proceedings of the said sheriff substitute and whole process, and, if he think proper, hear the parties viva voce thereon, and pronounce judgment; and such judgment shall in no case be subject to review by suspension or to reduction on any ground whatever.2

1 The words "or advocation" are omitted by 55 & 56 Vict. c. 19.

As to appeal where sheriff's ordinary jurisdiction is also invoked, see Law of Rlys. pp. 882, 883, and cases there cited.

CLI. Parties allowed to appeal from justices to quarter sessions on giving security.1

1 Repealed by 55 & 56 Vict. c. 19.

CLII. Court to make such order as they think reasonable.1

1 Repealed by 55 & 56 Vict. c. 19.

SPECIAL ACT.

And with respect to the provision to be made for affording access to the special Act by all parties interested, be it enacted as follows:

:

CLIII. Copies of special Act to be kept and deposited, and allowed to be inspected. -The company shall at all times after the expiration of six months after the passing of the special Act keep in their principal office of business a copy of the special Act, printed by the printers to her Majesty or some of them; and shall also within the space of such six months deposit in the offices of each of the sheriff clerks of the several counties into which the works shall extend a copy of such special Act, so printed as aforesaid; and the said sheriff 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 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 Custody of such Documents as shall

be directed to be deposited with them under the standing orders of either House of Parliament."

CLIV. Penalty on company failing to keep or deposit Act.—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 five pounds for every day afterwards during which such copy shall be not so kept or deposited.

CLV.1 Alteration of Act.

1

Repealed by Stat. Law Rev. Act, 1875, 38 & 39 Vict. c. 66.

1845.

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SCHEDULE.1

1 Repealed by Stat. Law Rev. Act, 1892, 55 & 56 Vict. c. 19.

THE RAILWAY (SALES AND LEASES) ACT, 1845.1-8 & 9 VICT.

1 Cited as

CAP. 96.

"The Railway (Sales and Leases) Act, 1845" (Short Titles Act, 1896).

AN ACT TO RESTRICT THE POWERS OF SELLING OR LEASING RAILWAYS CONTAINED IN CERTAIN ACTS OF PARLIAMENT RELATING TO SUCH RAILWAYS. -[4th August 1845.]

No railway company to grant or accept a lease or transfer of any railway unless under a distinct provision of an Act specifying the parties....1 It shall not be lawful for the company of proprietors of any railway, by virtue of any powers contained in any Act passed in the present session, to make or grant, or for any other railway company or party, by virtue of any such powers, to accept a sale, lease, or other transfer of any railway, unless under the authority of a distinct provision in some Act of Parliament to that effect, specifying by name the railway to be so leased, sold, or transferred, and the company or party by whom such lease, sale, or transfer may be respectively made, granted, or accepted.2

1 Preceding words omitted by Stat. Law Rev. Act, 1891, 54 & 55 Vict. c. 67.

2 See notes to secs. 80 and 105 of The Railways Clauses Act, 1845; see also 21 & 22 Vict. c. 73, sec. 3. As to working agreements between companies, see secs. 80 and 81 of The Railways Clauses Act, 1845, and secs. 22 et seq. of 26 & 27 Vict. c. 92.