pany. (u) As for instance, where a railway company contract for a supply of ballast to be screened to their engineer's satisfaction, they are not liable upon such contract, unless the ballast is in point of fact shown to have been screened to the engineer's satisfaction. (x)

220. Equity will relieve against fraud, breach of contract, or oppression in a railway company as much as in an ordinary person. (y) Suppose therefore that a party contract with a railway company for the performance of certain work, and that by the terms of the contract the engineer, or other officer of the company, is constituted judge of the amount of work from time to time done by the contractor, in order to the apportionment of the payments accordingly, the latter may go into equity for relief, if it appear that the engineer, &c. by his mode of estimating the works, does not give him all that he is entitled to claim under the contract, the investigation requisite to determine this point being of a character that can only take place under the superintendence of a court of equity, and being impossible to be made in a court of law. (y)

221. So where in an ordinary case a court of equity would decree the specific performance of a contract, they will do so against a railway company, as for instance, where there is a contract by the company to do certain defined work on their own

(u) Parkes v. The Great Western Railway Company, 3 Railw. Cas. 17; S. C. 6 Jur. 628.

(1) Ibid.

(y) Ranger v. The Great Western Railway Company, 1 Rail. Cas. 1; S. C. 3 Railw. Cas. 298.

I 2

land, in the performance of which the opposite party has so material an interest, that its non-performance cannot be adequately compensated by damages at law. (2)

222. If a railway company (a) agree for the purchase of land, they stand in the position of any ordinary purchaser. Supposing therefore the company deliberately take possession before the purchase is complete, and this without the consent of the owner, as a general rule, they become liable to perform the contract specifically on their part, and may at the same time be restrained from retaining such possession until the purchase money is paid into court. (b) And the court may order the money to be paid in, though the company are willing to give up the possession. (c) This, however, does not apply to a case where the acts relied on as constituting a taking possession on the part of the company have been done under a mistake, and when the company subsequently do all that they can to rectify the mistake. (d)

() Storer v. The Great Western Railway Company, 3 Railw. Cas. 106; S. C. 2 Y. & C. N. C. 48; see ante, p. 123.

(a) As to the liability the company incur by giving a notice of their intention to take lands under their act, see post, sub-sect. 7, p. 199. As to their liability for compensation money assessed by a jury, and the mode of enforcing the same, see same sub-sect. post.

(b) Hyde v. The Great Western Railway Company, 1 Railw. Cas. 278; Robertson v. The Great Western Railway Company, ibid. 459.

(c) Judgment of Vice-Chancellor in Tomlinson v. The Manchester and Birmingham Railway Company, 2 Railw. Cas. 104. (d) Tomlinson v. The Manchester and Birmingham Railway Company, 2 Railw. Cas. 104.

223. If a railway company contract for the purchase of land, which may or may not be eventually required for the purposes of their act, the company being undetermined whether to carry their line through the land in question, or in a direction to avoid it (in which latter case, of course, their authority to purchase such land under their act would be at an end), a court of equity would hardly, it is conceived, decree a specific performance of such a contract while this state of things continues, as the effect might be to thrust upon the company as purchasers land which in the event they might prove incapable of taking. (e) Not but what if the owner could show that, owing to the conduct of the company, he has been incapacitated from applying his land to some profitable use as he otherwise might have done; or that he has been led on by the company to give up in their favour some particular speculation that he had formed for employing his property; he might perhaps in those respects be entitled to relief, if he shaped his complaint accordingly. (ƒ)

II. Of the Liabilities of a Railway Company

in Tort.

224. It is proposed in the next place to treat of the liabilities of railway companies ex delicto; and here three questions suggest themselves for our consideration. 1st, how far a railway company is capable of committing a tort; 2ndly, when a tort can be considered to be the public act of the company as

(e) See Tomlinson v. The Manchester and Birmingham Railway Company, 2 Railw. Cas. 104.

such; and 3rdly, assuming an act to be such as a railway company is competent to do, and to be in point of fact or law their act, what are its character and incidents.

225. 1st. A railway company being a mere politic person, cannot itself be guilty of a trespass or other like act, which implies a physical capacity of action. But still it may in point of fact authorize the commission of such acts by another on its behalf. It seems to follow, that at all events whatever act a railway company can in its politic capacity competently order to be done on its behalf, it is liable for the consequences, if it be of a tortious nature, and to the prejudice of others. (g) Now in general under this description are to be included such acts alone as are expressly authorized by the company's statute, or are fairly and reasonably requisite for attaining the purposes of its institution. Supposing therefore the act in question not to be fairly reducible to either of these heads, the safer course would seem to be to seek a remedy against those to whom the act can be immediately brought home in their individual capacity.

226. 2ndly. We have to consider when a tort may be taken to be the act of the company as such. A railway company, we have seen, may act in three ways, either by the resolutions of a public meeting, or by a vote of the directors, or, lastly, by an agent duly appointed under the common seal of the company. (h) The two former modes of action indeed may be regarded as in a great measure coincident

(g) See Yarborough v. The Bank of England, and cases there cited, 16 East, 6.

(h) See ante, p. 70 et seq.

with the latter; as to carry out the vote of the company or the directors, the co-operation of a duly constituted agent is in general necessary.

227. Although ordinarily it may be necessary that the agent of a railway company should have an authority under their common seal, in order to render the company liable in tort for his acts, yet the rule must at any rate be understood with certain exceptions. Ordinary services, for instance, constitute one class of established exceptions; (i) and again, where an act is done for the benefit of a railway company, and they subsequently adopt and avail themselves of it, the company cannot, it should seem, excuse themselves, on the ground of the actors not being authorised under the common seal of the company. (k) Even where it is essential that the company should have authorized the act under their common seal, such an authority will be presumed after verdict. (1)

228. The act of the servant or agent, in order to charge the company, must of course be such as falls within the scope of the former's authority. A contractor for the execution of railway works it seems is to be deemed an agent of the company, and therefore what he does in the course of the execution of such works is the act of the company. (m) And (i) Cary v. Mathews, 1 Salk. 191; Manby v. Long. 3 Lev. 107.

(k) See Smith v. The Birmingham Gas Light Company, 1 Ad. & E. 526.

(1) Yarborough v. The Bank of England, 16 East, 6; see also Thames Haven Dock and Railway Company v. Hall, 5 M. & Gr. 274.

(m) Semple v. The London and Birmingham Railway Company, 1 Railw. Cas. 480.