Railway Company 1854. preceding the making of the rate appealed against, the NEWMARKET appellants were unable from their net earnings to pay a dividend of three per cent. upon their capital; and The Eastern Counties Railway Company paid them 3705l. 9s. 7d. under the agreement, to make up the dividend to three per cent. per annum. v. ST. ANDREW'S Lord Campbell C. J. The appellants contend that this sum ought not at all to be taken into consideration in assessing them as occupiers of the railway to the relief of the poor; alleging that it cannot be treated as the earnings of their railway, or as rent, or money paid in the nature of rent, for the use of the railway, and ought to be considered only as an indemnity to the appellants, or a payment to them under a guaranty, unconnected with the occupation or enjoyment of land. But I am of opinion that, in assessing the appellants for the portion of the branch line which is in the limits of the respondent parish, this payment ought to be taken into consideration. I think it is received by the appellants in respect of their occupation of their railway, and is part of the profits of that occupation. It is evidently made in consideration of an advantage which The Eastern Counties Railway Company calculate that they derive from this branch railway from Chesterford to Cambridge. Whether it be a fixed annual sum or a sum depending upon a contingency, it is equally in respect of the use made of a railway occupied by the appellants, and, when received, it is part of the profits of that railway. If The Eastern Counties Railway Company paid the appellants a sum of money for being allowed to bring passengers in their own carriages from Chesterford to Railway Company V. ST. ANDREW'S Lord Campbell C. J. Cambridge gratis, that these passengers might be carried 1854. on the Eastern Counties line, for hire, from Cambridge NEWMARKET to London, little doubt can be entertained that such a payment would be part of the profits of the branch of the appellants: and it seems to make no difference that the payment is made in respect of passengers brought from Chesterford to Cambridge in carriages of the appellants, The Eastern Counties Railway Company deriving the same profit from conveying them forward to London. The railway, within the respondent parish, is rendered more valuable and productive by something connected with the use of it in another parish, and, according to decided cases, its rateable value within the respondent parish is thereby enhanced. By the 7th article of the agreement: "In respect of all traffic, whether of passengers or of goods which The Newmarket Railway Company shall bring from any part of their railway, distant more than four miles from the Cambridge station, to Cambridge, to be carried upon The Eastern Counties railway to" certain places enumerated," the Newmarket Railway Company shall be entitled to retain, out of the tolls, rates and charges received by them upon such traffic, sixty per cent. of the gross amount thereof." The per centage of the tolls so retained would clearly be part of the profits of the branch, in respect of which the appellants would be liable to be rated; and the effect would not be different if the right of retention had been made to depend upon the contingency of profits of The Newmarket Railway Company not being otherwise sufficient to enable them to pay a dividend of three per cent. upon their capital. Again, suppose that, with a view to make the branch a more effective feeder to The 1854. NEWMARKET V. ST. ANDREW'S Lord Campbell C. J. Eastern Counties line from Cambridge to London, it had not see why they are less profits of the railway because, 1854. upon a contingency, they may cease. If this branch NEWMARKET Railway Company V. were let to a tenant he would be entitled under the agreement, and the Act of Parliament confirming it, to ST. ANDREW'S this contingent payment; and no doubt it would enhance the amount of the rent which as a tenant from year to year he would be willing to offer for it. I have only further to observe, in answer to an objection raised at the bar, that in my opinion the contention of the respondents does not lead to the double rating of the same profits; for, if The Newmarket Railway Company were rateable in respect of a payment made to them under this agreement, or under an agreement whereby The Eastern Counties Railway Company undertook to pay them absolutely a certain sum for each passenger brought from Chesterford to Cambridge, The Eastern Counties Railway Company would be entitled to a deduction in respect of such payment from their gross earnings when the assessable value of their railway comes to be estimated. I wish to adhere to the recent, as well as the earlier, cases on this subject, with this caution, that, when we were determining that in rating railways the parochial not the mileage principle was to be adopted, the Court did not mean to intimate that the assessable value of land in one parish might not be increased by a profit derived from it by the occupier, as occupier, in consideration of an advantage derived from it in another parish. Upon the whole, my opinion is in favour of the respondents. But there must be Judgment for the appellants. THE LESS, CAMBRIDGE. Lord Campbell C. J. VOL. III. I F. & B. 1854. Saturday, January 14th. A commission, under stat. 1 W. 4. c. 22. s. 4., issued at the instance of the defendant, directed barrister, to LUMLEY against GYE. SIR A. J. E. Cockburn, Attorney General, in last Term (25th November 1853), obtained a rule calling on the plaintiff to "shew cause why the defendant should not be at liberty to issue a commission, addressed to the to an English Royal City Court of Berlin, or any judges or judge thereof, or to be appointed thereby, for the purpose of examining witnesses on the defendant's behalf, resident at Berlin, in the Kingdom of Prussia, and why, in such commission, the usual clause rendering the commiscommissioner sioner's oath necessary should not be dispensed with:" and, further, calling on the plaintiff to "shew cause Prussian law, why a commission should not issue, directed to a com examine witnesses in Ger. many. The witness, a Prussian subject, being at Berlin, the went thither, but learned that, by the an oath could be adminis tered to a Prussian subject only by a Prussian missioner or commissioners for the examination of witnesses on behalf of the said defendant at Hamburgh, on interrogatories: and why the trial of the issues in this cause should not be postponed until the return of the said commissions:" proceedings to be stayed in the petition of meantime. judge, or some one authorized by a Prussian Court. On the commis sioner, a Prus sian Court authorized D., a Prussian, to administer the oath. On the commission being opened, D. insisted on assuming the controul of the whole examination, and rejected a question put conformably to the English law, on the ground that it could not be put conformably to the Prussian law. The parties then refused to act further under the commission. The commissioner returned these facts: and application was then made, by the defendant, for a new commission, to be directed to a Prussian court or judge, without the clause requiring the commissioner to be sworn. From the affidavit in support of the rule, the above facts appeared; and it appeared, further, from the opinion of a Prussian lawyer, that the Prussian rules of evidence were different from the English, especially that examination and cross-examination by counsel was not permitted. This Court ordered that, on payment of the costs of the first commission by the defendant, a commission should be directed to a Prussian judge, as an individual: holding that it ought not to be assumed that the evidence would be taken improperly, and considering that, in the event of such impropriety occurring, an objection might be made at Nisi priùs. Especially as, by this course, an opportunity would be given of raising, by error upon bill of exceptions, the question whether the issuing of such commission was within the power of this Court. |