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In defence, it was maintained, 1. That no public canal or highway was liable, by the law of Scotland, to be assessed for poor's rates; and, 2. Even if it could be so assessed, the principle on which the rental was framed could not be supported, as no profits were realised from the canal, but the whole proceeds applied in extinguishing the debt of the company.
The record was closed on summons and defences by a minute, in which it was also stated that the parties held ‘the sum of L.1000 to be the gross annual worth to the defenders of their property in their own occupancy, including canal dues of the canal, and other works connected therewith, situated in the parish of St Cuthberts.’ Cases were ordered by the Lord Ordinary.
The Lord Ordinary made avisandum with the cause to the Court, adding to his interlocutor the annexed note:
The Lord Ordinary says nothing of the law of England. It is a very peculiar system. But even as it is, he is not at all satisfied that any of the cases referred to import any thing like what the pursuer maintains. It would, in his apprehension, amount to an assessment on personal estate , not admissible at all in the law of England, or rather to an assessment on the gross income, without regard to debts. But however this may be, the law of Scotland is entirely different.
The record is certainly meagre. But as no proposal has been made to open it, the Lord Ordinary has advised the cause as it stands.’
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