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![handle is hein.slavery/ssactsengr0092 and id is 1 raw text is: 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
[112] Eastern Counties line from Cambridge to London, it had been stipulated by the
agreement that The Newmarket Railway Company should bring goods and passengers
at very low rates from Chesterford to Cambridge, The Eastern Counties Railway
Company undertaking to make up the deficit if the net profits did not enable The
Newmarket Railway Company to pay a certain dividend on their capital: surely a
payment to make up the deficit ought to be included in the gross earnings of the
branch in estimating its rateable value; and, for this purpose, there seems to be no
difference, on principle, between such a payment and that which we have here to
decide upon. It is admitted that, if the Eastern Counties Railway Company had
agreed absolutely to'pay the appellants so much a head for every passenger carried
from Chesterford to Cambridge, and travelling on by the Eastern Counties Railway
to London, such a payment would be part of the earnings in respect of which the
appellants would be rateable. Could any difference be made by a proviso that this
payment should not exceed the sum necessary to make up a dividend of three per
cent. to the shareholders of The Newmarket Railway Company, and that, such
dividend being made up, the payment should cease? While the payment goes on
to make up the dividend, it still seems to be part of the fruits of the occupation of
their railway by the appellants, and I conceive that it must be taken into account in
estimating the assessable value of the railway. But all the difficulties, pointed out
in bringing the payment in question into account, might be urged against bringing
into account the supposed payment which appears so clearly to be an ingredient in
the assessable value. While such payments continue, I do [113] not see why they
are less profits of the railway because, upon a contingency, they may cease. If this
branch were let to a tenant he would be entitled under the agreement, and the Act
of Parliament confirming it, to 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.
[114] LUMLPY against GYE. Saturday, January 14th, 1854. A commission, under
stat. 1 W. 4, c. 22, s. 4, issued at the instance of the defendant, directed to an
English barrister, to examine witnesses in Germany. The witness, a Prussian
subject, being at Berlin, the commissioner went thither, but learned that, by the
Prussian law, an oath could be administered to a Prussian subject only by a
Prussian judge, or some one authorized by a Prussian Court. On the petition
1083
8 EL. & BL. 112.
LUMLEY V. GYE](ViewImageLocal?handle=hein.slavery/ssactsengr0092&div=1&collection=&method=preview&ext=.png&size=3)