Tramways (Electrical Power) Act, 1900 (63 & 64 Vict. c. ccxxxviii.), s. 27; and London County Council (Tramways and Improvements) Act, 1901 (1 Edw. 7, c. cclxxi.), s. 67. Sect. 21. PART II. Construction of Tramways. poration of III. of this 22. Part II. and Part III. of this Act shall apply to As to incorevery tramway which is hereafter authorised by any Parts II. and Provisional Order or Act of Parliament (a), and shall Act with be incorporated with such Provisional Order or Act, Provisiona and all the said provisions of this Act, save so far as Special Acts. they shall be expressly varied or excepted (6) by any such Provisional Order or Act, shall apply to the undertaking (c) authorised thereby, so far as the same shall be applicable to such undertaking, and shall, with the provisions of every other Act or part of any Act which shall be incorporated therewith, form part of the said Provisional Order or Act, and be construed therewith as forming one Provisional Order or Act, as the case may be. (a) Not, therefore, to a tramway constructed under Light Railways Act, 1896, which, though in fact a tramway, is called a light railway, and is made under a Light Railway Order. It will be seen, however, that the model Light Railway Order (post, p. 586) substantially embodies the provisions of these parts of the present Act. (b) As to the effect of these words, see sect. 15 and note (p) thereto. The section is badly drawn. It first enacts that Parts II. and III. shall apply and be incorporated, and then modifies this by enacting that they shall only apply so far as they are applicable and so far as they are not expressly varied or excepted. (c) The meaning of this word is discussed in note (o) to sect. 43. Act." 23. In Part II. and Part III. of this Act, the term "Special "special Act" shall be construed to mean any Act of Parliament which shall be hereafter passed or any Provisional Order authorising the construction of a Sect. 23. tramway, and with which the said parts of this Act shall be incorporated as aforesaid (d). "Promoters." (d) I.e. by the preceding section. But in view of the provisions of that section the last sentence of this section is not happily worded. 24 (e). The term "the promoters" (ƒ) shall mean any person, persons, corporation, company, or local authority authorised by special Act (g) to construct a tramway. (e) Subaudi here from sect. 23 "In Part Two and Part Three of this Act." "Promoters," as far as Part I. of the Act is concerned, has already been defined in sect. 4, of which this section is an inartistic duplication, extending the definition of promoters to persons authorised to construct a tramway under a special Act as well as under a Provisional Order. (f) Sects. 4 and 24 define "promoters" for the purposes of this statute. But questions may and do arise with regard to the position and obligations of persons who are "promoters " in the ordinary sense of the word, but who, in relation to the Tramways Act, are, so to speak, promoters of the statutory promoters—that is, persons who entered into the preliminary engagements and arrangements which resulted in the obtaining of the Act or Order by the statutory promoters, whether such persons are identical with the subsequent statutory promoters or not. It is beyond the scope of this work to discuss such questions otherwise than in a summary way. (i.) The enforcement of arrangements made with promoters, which are the plaintiff can show that he has a private interest in the matter. (Liverpool Corporation v. Chorley Waterworks Co. (1852), 2 De G. M. & G. 852.) Nor will the plaintiff have any remedy where the Act, which schedules the agreements on which the plaintiff relies, authorises the matter of which he complains. (Edinburgh Street Tramways Co. v. Black (1873), L. R. 2 H. L. Sc. 336; 11 M. (H. L.) 57, see note (u) on sect. 9, supra.) In construing the statutory provisions which create such rights, what may have been said during the negotiations of the contract which they embody, or during the proceedings before a Parliamentary Committee, cannot be considered (Steele v. Midland Railway Co. (1865), L. R. 1 Ch. 275, 282; North British Railway Co. v. Tod (1846), 12 Cl. & F. (8 E. R.) 722); neither can plans exhibited or deposited in pursuance of Standing Orders, except in so far as they are made part of the Act, as, for instance, by the Act's directing compliance with them (North British Railway Co. v. Tod, ub. sup.; Beardmer v. London and North Western Railway Co. (1849), 1 Mac. & G. 112; 18 L. J. Ch. 432; Edinburgh Street Tramways Co. v. Black, ub. sup.; A.-G. v. Great Eastern Railway Co. (1872), L. R. 7 Ch. 475; L. R. 6 H. L. 367; 41 L. J. Ch. 505; Mackett v. Herne Bay Commissioners (1876), 35 L. T. 202; 37 L. T. 812 (C. A.)). Lord Halsbury, L. C., apparently, did not intend to doubt this in Herron v. Rathmines and Rathgar Improvement Commissioners (ub. sup., at p. 502), in saying: "the character and details of the works must be ascertained partly from the deposited plans and sections, and partly from the language of the Act itself"; he seems to have been thinking only of the identification of the subjectmatter with which the Act was dealing, and of the facts as existing at the time the Act was passed. It seems that the Court would restrain an application to Parliament in breach of an arrangement, or otherwise in a proper case. (Steele v. North Metropolitan Railway Co. (1867), L. R. 2 Ch. 237; 36 L. J. Ch. 540; In re London, Chatham and Dover Railway Arrangement Act (1869), L. R. 5 Ch. 671.) (ii.) The enforcement of arrangements made with promoters, which are not confirmed by Act. The company, which, ex hypothesi, is not in existence at the date of such an agreement, cannot ratify it. (Kelner v. Baxter (1866), L. R. 2 C. P. 174; 36 L. J. C. P. 94.) The company, however, may become equitably bound by such a contract as the result of some act or circumstance which amounts to an adoption or recognition of it. (Touche v. Metropolitan Railway Warehousing Co. (1871), L. R. 6 Ch. 371; Bagot Pneumatic Tyre Co. v. Clipper Pneumatic Tyre Co. [1902] 1 Ch. 146; 71 L. J. Ch. 158 (C. A.).) Such an act or circumstance must arise from the deliberate conduct of the company, and not from an erroneous belief that they are liable under Sect. 24. Sect. 24. the contract. (In re Northumberland Avenue Hotel Co., Sully's case (1886), 33 Ch. D. 16.) Nor is a resolution of directors adopting and confirming such a contract sufficient. (North Sydney Investment and Tramway Co., Ltd. v. Higgins, [1899] A. C. 263; 68 L. J. P. C. 42 (P. C.).) The criterion is really rather the receipt of benefits under the contract by the company, which renders it inequitable that they should repudiate the contract under which they have received the benefits. (In re Empress Engineering Co. (1880), 16 Ch. D. 125, 130 (C. A.); Howard v. Patent Ivory Manufacturing Co. (1888), 38 Ch. D. 156, 164; 57 L. J. Ch. 878, 882.) Unless, therefore, such a contract specifically excludes the personal liability of the promoter, he will be personally liable as being agent for a non-existent principal. (Kelner v. Baxter, ub. sup. ; Scott v. Lord Ebury (1867), L. R. 2 C. P. 255; 36 L. J. C. P. 161.) There seems to be no reason why the above principles should not apply to the case of a statutory corporation (including corporations constituted by a Light Railway Order). The impossibility of ratification by a company of an agreement, which was made when it was not yet in existence, is strengthened, as pointed out by Lord Cranworth, L. C., in Preston v. Liverpool, Manchester and Newcastleupon-Tyne Junction Railway Co. (1856), 5 H. L. C. (10 E. R.) 605, 618; 25 L. J. Ch. 421, by the consideration that the liabilities of such a company ought to be limited by the ambit of the Act which brings it into existence. Thus a company will not be bound even by an agreement arranged before a Parliamentary Committee and expressed to be as obligatory as if it were specially enacted in the Bill, though it will bind the parties to it. (Caledonian, &c. Railway Co. v. Helensburgh Magistrates (1856), 2 Macq. 391.) It is otherwise where the company is already in existence at the date of the agreement, and enters into the agreement conditionally on its obtaining further powers under a projected Act. (Scottish North Eastern Railway Co. v. Stewart (1859), 3 Macq. 382; Taylor v. Directors, &c. of the Chichester and Midhurst Railway Co. (1870), L. R. 4 H. L. 628; 39 L. J. Ex. 217.) But there is no reason why a company, not in existence at the date of the agreement, should not adopt and become equitably liable under such an agreement. This principle was not doubted in Preston v. Liverpool, &c. Railway Co., ub. sup., nor in Mann v. Edinburgh Northern Tramways Co., [1893] A. C. 69 ; 20 R. (H. L.) 7; 62 L. J. P. C. 74 (discussed under head (iv.) below), and was followed in Lindsey (Earl of) v. Great Northern Railway Co. (1853), 10 Hare, 664; 22 L. J. Ch. 995, and Williams v. St. George's Harbour Co. (1858), 2 De G. & J. 547; 27 L. J. Ch. 691. It may be noted that Railways Construction Facilities Act, 1864 (27 & 28 Vict. c. 121), s. 30, specially provides that promoters' contracts for the taking of lands shall be binding on the company. (iii.) The enforcement of arrangements for the payment of preliminary Sect. 24. expenses and for preliminary services. Whether the payment of such expenses is provided for in the special Act or not, it is essential that the claimant, whether he be a solicitor, Parliamentary agent, valuer, or what not, should be a person who looked to the company and not to a promoter for payment, even where the company has agreed with the promoter to pay, or had the benefit of the claimant's services; otherwise he has no cause of action against the company. (In re Skegness and St. Leonards Tramways Co. (1888), 41 Ch. D. 215; 58 L. J. Ch. 737 (C. A.); In re Hereford and South Wales Waggon and Engineering Co. (1876), 2 Ch. D. 621; 45 L. J. Ch. 461; In re Rotherham Alum and Chemical Co. (1883), 25 Ch. D. 103; 53 L. J. Ch. 290; Wyatt v. Metropolitan Board of Works (1862), 11 C. B. N. S. 744 ; 31 L. J. C. P. 217; In re Kent Tramways Co. (1879), 12 Ch. D. 312 (C. A.).) But the company might be equitably bound to pay if the claimant had looked to no one, and had no one to look to, for payment other than the company (In re Hereford, &c. Co., In re Rotherham, &c. Co., ub. sup.), and if the company had taken the benefit of the claimant's services (Terrell v. Hutton (1854), 4 H. L. C. (10 E. R.) 1091, 1099; 23 L. J. Ch. 345, 347), unless his claim was to be rejected on the ground of fraud or some similar ground. (In re Hereford, &c. Co., ub. sup.) Moreover, where the expenses are not provided for by the special Act, the promoters cannot sustain a claim for preliminary expenses against the company, for there is no privity of contract between them, even though the memorandum or articles of association of the company provide for the payment of them by the company to the promoters. (Melhado v. Porto Alegre, &c. Railway Co. (1874), L. R. 9 C. P. 503; 43 L. J. C. P. 253.) Where, on the other hand, the payment of the preliminary expenses is provided for in the special Act, either directly or by the incorporation of Companies Clauses Consolidation Act (8 & 9 Vict. c. 16), s. 65, the persons who have incurred the expenses or done the services on behalf of the intended company may sue the company (Tilson v. Warwick Gas Light Co. (1825), 4 B. & C. 962; 4 L. J. (O. S.) K. B. 53; Hitchins v. Kilkenny, &c. Railway Co. (1850), 9 C. B. 536; Scott v. Lord Ebury (1867), L. R. 2 C. P. 255, 264; 36 L. J. C. P. 161, 164), even though the claimant be himself a member of the company. (Carden v. General Cemetery Co. (1839), 5 Bing. (N. C.) 253; 8 L. J. (N. S.) C. P. 163.) The costs which he can recover will include costs of lines projected, but abandoned before a Parliamentary Committee and not sanctioned in the special Act. (In re Tilleard (1863), 3 De G. J. & S. 519; 32 L. J. Ch. 765.) But the company must have had the benefit of the expenses; so a motion for an injunction against S. K |