Probably, where the penalty does not provide so effectual a Sect. 28. remedy as a mandamus directed to the promoters, or where there is no penalty provided, a mandamus to the promoters will be granted (R. v. Severn and Wye Railway Co. (1819), 2 B. & A. 646; R. v. Clear (1825), 4 B. & C. 899; 4 L. J. (O. S.) K. B. 53), unless, as a matter of construction, the remedy by penalty is held to exclude all other remedies. (See note (i) to sect. 49.) It has now been decided by the House of Lords that it is the duty of the promoters to keep the surface, and not merely the substructure, in good condition and repair by sanding, reconstruction or otherwise, and to obey the directions given to them by the road. authority in that behalf. Promoters who had not remedied the condition of their track, which had become slippery and worn by the traffic, were mulcted in damages for personal injuries caused by the state of their track. (Dublin United Tramways Co., Ltd. v. Fitzgerald, [1903] A. C. 99; 72 L. J. P. C. 52.) As to accidents due to non-repair, see note (h) to sect. 55. (f) See sects. 18 and 41. (g) See note (o) to sect. 43. (h) See note (y) to sect. 27. (i) Compare the provisions of sect. 27. (k) See note (q) to sect. 26. But the words "at least do not occur here as they do in that section. (1) Where a road authority gave notice under this part of this section that they would commence the work on a certain day and would stop the traffic on the tramway as far as was necessary, but with as little inconvenience to the promoters as possible, an interim injunction was granted to restrain them from so stopping the traffic, in view of the fact that it was possible to do the repairs without this, and that any extra expense incurred would fall upon the promoters. (Busby v. Leeds Corporation (1872), 52 L. T. Newspaper 289.) But, quære, is this correct? See sect. 32, sub-sect. 4. (m) This provision as to expense gives no power to the road authority to recover any expenses incurred by them in superintending repairs done by the promoters themselves under this section. (St. Luke's Vestry v. North Metropolitan Tramways Co. (1876), 1 Q. B. D. 760; see note (r) to sect. 26.) (n) In Pegge v. Neath and District Tramways Co., [1895] 2 Ch. 508; 64 L. J. Ch. 737; compromised on appeal, [1896] 1 Ch. 684; 65 L. J. Ch. 536, the Court gave leave to the Glamorganshire County Council to levy a distress for penalties imposed on the company by a Court of summary jurisdiction in respect of non-repair of rails under this section and the company's Provisional Order. A receiver and manager was in possession of the undertaking, and therefore the leave of the Court was necessary, but the Court held generally that there was power to distrain, and sell what was distrained, and rejected the argument against it based on the L Sect. 28. alleged interference with public convenience which would arise from distraint. Road autho rity and pro- In connection with the same matter, see Ex parte Neath and 29. The road authority (o) on the one hand and the (0) Defined in sect. 3. (p) See sects. 4 and 24. (9) Apparently means the same as "carriageway" as used in the definition of "road" in sect. 3. The same word ought to have been used here, or, better still, the word ought to have been omitted altogether, as "road" alone, as defined in sect. 3, would have expressed what is required here. The promoters, of course, have no concern with the paving or repair of anything but a portion of the carriageway under sect. 28, any more than they have a right to break up anything but the carriageway. (Hyde Corporation v. Oldham, Ashton and Hyde Electric Tramway, Ltd. (1900), 64 J. P. 596; 16 T. L. R. 492 (C. A.).) (r) In Howitt v. Nottingham Tramways Co. (1883), 12 Q. B. D. 16; 53 L. J. Q. B. 21, it was held that sects. 28 and 29 must be read together, and that where a contract under this section had been made, the liability for damage caused by non-repair of their part of the road, which would otherwise be upon the promoters, was transferred to the road authority, in spite of the proviso to sect. 55, whereby the promoters are to save the road authorities harmless in respect of injuries caused by the promoters' act or default. The injury could not be considered as due to the promoters' act or default where, owing to the contract, the promoters were not responsible for the repairs which caused the injury. It may be suggested that the proviso in sect. 55 refers rather to cases where the road authority is doing the promoters' repairs in default of the promoters under sect. 28, though this did not occur to the Court in the above case. This decision was doubted obiter by Lord Esher, M. R., in Steward v. North Metropolitan Tramways Co. (1886), 16 Q. B. D. 556 (C. A.), a case in which the company was refused leave to amend by pleading the liability of the road authority under a contract made in pursuance of this section, on the ground that it was then too late, if the company's contention proved to be correct, for the plaintiff to sue the road authority. But it was affirmed in Alldred v. West Metropolitan Trams Co., [1891] 2 Q. B. 398; 60 L. J. Q. B. 631 (C. A.), on a precisely similar set of facts. In Barnett v. Poplar Borough, [1901] 2 K. B. 319; 70 L. J. K. B. 698, it was argued (i) that the transfer to the road authority of an obligation to repair did not render them liable for mere nonfeasance, unless the Legislature had imposed such liability (Cowley v. Newmarket Local Board, [1892] A. C. 345; 62 L. J. Q. B. 65 ; Pictou Municipality v. Geldert, [1893] A. C. 524; 63 L. J. P. C. 37); and (ii) that the above cases only decided that the promoters were not liable, and not that the road authority was liable. These arguments were not accepted by the Court, and the question may now be taken as settled. The effect of an agreement between a road authority and a street railway company whereby the company was relieved from all liability for the construction, renewal, maintenance, and repair in respect of all the portions of streets occupied by their track, is discussed in Toronto Corporation v. Toronto Street Railway Co. (1894), 23 Can. S. C. R. 198. In Toronto Street Railway Co. v. Toronto Corporation, [1893] A. C. 511; 63 L. J. P. C. 10, it was held that, where such an agreement existed, the company was not entitled, on compulsory purchase, to be compensated for permanent pavements laid down by the road authority under the agreement. In Over Darwen Corporation v. Lancashire JJ. (1887), 58 L. T. 51; 36 W. R. 140, a tramway company's Act imposed upon them the liability to repair the whole width of the road along or across which their line was laid, if they used steam power. But power was given to them, with the sanction of the Board of Trade, to make agreements with the road authorities for such repair, such agreements not to diminish their liability under sect. 28 of this Act. One of the road authorities, without any apparent consideration, agreed with the company to repair the remainder of the road, if the company would repair the width of their track and 3 ft. 6 in. on either side, and then, as the road was a disturnpiked main road, demanded from the county authority half the expenses incurred by them under this agreement. It was held that they were entitled to do so, as the agreement, though remarkable, was in accordance with the Act. In connection with this section attention may be drawn to Public Health Act, 1875 (38 & 39 Vict. c. 55). By sect. 147, 'Any urban authority may agree with the proprietors of any canal, railway or tramway to adopt and maintain any existing or projected bridge, viaduct or arch within their district, over or under any such canal, railway or tramway, and the approaches Sect. 29. Sect. 29. thereto, and may accordingly adopt and maintain such bridge, viaduct or arch and approaches as parts of public streets or roads maintainable and repairable by the inhabitants at large within their district; or such authority may themselves agree to construct any such bridge, viaduct or arch at the expense of such proprietors; they may also, with the consent of two-thirds of their number, agree to pay, and may accordingly pay, any portion of the expenses of the construction or alteration of any such bridge, viaduct or arch, or of the purchase of any adjoining lands required for the foundation and support thereof, or for the approaches thereto." Provision as to gas and water com panies. By sect. 148 (as amended (very badly) by S. L. R. Act, 1898 As far as tramways under this Act are concerned, it does not 30. For the purpose of making, forming, laying 1. Before laying down a tramway in a road in the company, persons, or person to whom such Sect. 30. 2. The promoters shall not remove or displace any |