Cases. Reg. v. The Great for it would be hardly worth while to distinguish between those rated and rateable only; and we have no means of drawing the distinction in fact. It is to be remembered, that the respondents properly treat the whole line, the whole profits, the whole outgoings, as entire; and then the question is, whether there is any distinction between this and other outgoings necessary to the earning the profits by which the rateable value of the land in the respondent parish is enhanced. It seems to us there is none; and, if so, we agree with the learned counsel for the appellants, that, in principle, it is indifferent whether the station be in the same parish or at a distance. The appellants claim, thirdly, an allowance for 21,000l. yearly, interest on the sum expended in forming their company, obtaining their act of Parliament, raising their capital, and other original expenses. For this there is no foundation. These expenses have no connexion with the rateable value of the railway. They might all have been incurred, and no railway ever constructed. As well might the purchaser of an estate with borrowed money, and after an expensive litigation as to the title, claim to deduct his interest and expenses from the poor-rate on the land when in his occupation. They neither add to the value of the occupation, nor are any way necessary to the making it up. The appellants then claim to be allowed in respect of 10,000l. paid by them as income-tax under stat. 5 & 6 Vict. c. 35. This claim is very shortly and unsatisfactorily stated. In respect of what the payment has been made, we are not informed on either side: the argument respecting it was short. The respondents treated the claim as made in respect of the charge on the property in land payable by the owner; the appellants claimed it in respect of the charge on the occupation payable by the tenant, and to this extent at least it does not strike us that there is any reasonable distinction between this and any other outgoing chargeable on the tenant, which would certainly affect the amount of the rent he would be willing to pay. The fifth claim is to be allowed for such additional parochial assessments as may become payable, it is not said when or where, in consequence of the recent decisions of this Court; upon which we will only say that we think the Court would have been well justified in refusing to permit it to form part of the case. In the sixth place, the appellants claim to be allowed a deduction in respect of their loss on the two branch lines before referred to. We think this cannot be allowed. If the rate in question had been imposed on land forming any part of the branch lines themselves, it is clear that the circumstance of the receipts not equalling the rent,— Cases. Western Railway Co. in other words, that the line was worked at a loss,-could not have Reg. v. The Great affected the rate; the occupation would have still been beneficial, in the sense in which that word is used, for the purpose of assessing the rate; and the rent, which, from whatever motive, the appellants found it worth their while to give, would have regulated the amount. This is not that case in the way in which it is sought to make this expenditure bear upon the rates assessed on any part of the main line; it is more like money laid out in the way of improvement, for which no deduction should be made. If the lessee of a coal-mine were to open roads through adjoining lands rented under a separate demise, in order to facilitate the access of customers to the mine, and so increase its profits, the expense of such roads would certainly not be an outgoing to be allowed for by the overseers. Two more questions are stated: the first as to the mode of ascertaining the tenants' profits, in order to their deduction from the rateable value. The respondents have taken the original value of the plant or moveable stock, and allowed 107. per cent. upon it for these profits as well as the profits of trade. The appellants say that the more correct mode would be to ascertain them by a percentage on the gross receipts, and claim to have 157. per cent. deducted from these on that account. We are very unwilling to withhold our aid in settling questions for the sessions of such novelty and difficulty as the railway rating must often bring before them; but we ought not to go beyond our province, and so perhaps mislead them. This question involves no principle of law, and we decline to answer it. The last is only raised by the respondents provisionally, in case any of the deductions claimed by the company should be allowed by us. But this has been done:-in ascertaining the tenant's profits, they have calculated the percentage on the original value of the moveable stock; but the sessions have found, that, at the time of the rate being made, the value had become less by 80,000l.; and the respondents contend that the percentage should properly be made on the smaller sum. This seems to us correct; they are to make the rate from year to year, or for whatever shorter period, conformably to the facts as they exist at the time of making it. They may not know, nor have any means of knowing, what the value was originally or in any former year. If, at the end of five or ten years, they are to be driven back to the original value, they may be equally required to ascertain it after an interval of a century. No hardship is inflicted Cases. on the appellants by this; they may, and they ought, as prudent Reg. v. The Great owners, to keep up the stock at its original value, and in this very Western Railway Co. case they have claimed a deduction for doing so. If that claim were properly made, the original and the present value would be the same. Although, however, we thus answer this question in favour of the respondents, they cannot avail themselves of the decision so as to increase their assessment beyond its present amount. The consequence of the several decisions we have come to will be, the amendment of the rate in one or two particulars; but as the sums are ascertained by the sessions, this may be done, we presume, by the counsel, without remitting the case again to the sessions. Rate to be amended. 521 CHAPTER IV. ON MANDAMUS. WRITS of mandamus are now so frequently applied for in matters arising out of railway transactions, that a short account of this writ, and of the mode of obtaining it, seems to fall within the legitimate purposes of this work. The writ of mandamus is a high prerogative writ, issuing in the Queen's name out of the Court of Queen's Bench, and directed to any person, corporation, or inferior court of judicature within the Queen's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the Court of Queen's Bench has previously determined, or at least supposes to be consonant to right and justice. If the party making the application has a right, a legal right, and no other specific legal remedy, the writ will not be denied: for his having a remedy in equity will not be considered as any ground of refusal. And even though he may have another legal specific remedy, if such remedy be obsolete, the mandamus will be granted. And it has been decided to be no objection to the granting a mandamus to do a particular act, that an indictment will also lie for the omission to do that act; for the indictment does not compel the doing of the act, and therefore is not equally effectual with the mandamus (a). Thus it has been decided, that where an act authorised a justice to order a bridge to be pulled down, that provision afforded no answer to an application for a mandamus, when the object of the application was to compel the Company to rebuild the bridge according to the directions contained in the act (b). (a) 5 Bac. Abr., tit. "Mandamus," 256, 7th ed. And see post, 528. (b) Reg. v. The Norwich and Brandon Railway Co., 15 Law J., The Mode of obtaining the Writ. This writ is the proper remedy to enforce obedience to acts of Parliament and to the king's charters, and, in such cases, is demandable ex debito justitiæ (b). The writ is granted on a suggestion contained in affidavits, which state all the facts necessary to shew the applicant's right to the writ; whereupon, in order more fully to satisfy the Court that there is a probable ground for such interposition (c), a rule is made (d), directing the party complained of to shew cause why a writ of mandamus should not issue; and if no sufficient cause be shewn, the writ itself is issued at first in the alternative, either to do the act, or signify some reason to the contrary; to which a return or answer must be made at a certain day (e). (b) 5 Bac. Abr., tit. "Mandamus," 257, 7th ed. (c) In a case in which, by agree ment between the parties, an application was made for a mandamus, merely with a view to obtain the opinion of the Court, whether, on the construction of a private act, the proceeding by mandamus was the proper one, the Court stopped the argument, and refused to give any decision. Reg. v. The Blackwall Railway Co., 9 Dowl. P. C. 558. (d) In cases of emergency, a rule will be made absolute in the first instance: as, to compel the overseers of a parish to receive and maintain a child. Ex parte Foundling Hospital, 5 Dowl. P. C. 722. (e) Preliminary Proceedings to obtain the Writ.]-When it is determined to apply for a writ of mandamus, the first step to be taken, in all cases where such a proceeding is practica. ble, is to require the party against whom the application is intended to be made to do the act sought to be enforced, and such request ought to be made to the persons whose duty it is to do the act, and not to a clerk or other officer; Rex v. The Wilts and Berks Canal Co., 3 A. & E. 477; and in some cases it may be very desirable to give a written and explicit notice of the nature of the request, and that, in case of a refusal to comply with it, the applicant intends to apply for a writ of mandamus. The rule is, that a mandamus ought not to be moved for unless the party alleged to be in fault has known distinctly what he is required to do, so as to exercise an option whether he will do it or not. Per Coleridge, J., in Rer v. The Brecknock and Abergavenny Canal Company, 3 A. & E. 224. If an evasive answer, or a qualified refusal to do the act, be given, (Rex v. The Trustees of the Northleach and Witney Roads, 5 B. & Ad. 978), then some further application should be made, as it is always desirable that a direct refusal, or something equivalent, should be shewn. It is not necessary that the word "refuse," or any equivalent to it, should be used, but there should be enough to shew that the party with |