Allan — Objections, 3 Aug 1773 (Box 2)

Untitled August 3 1 7 7 3 O B J E C T I O N S F O R Joseph Allan of Castlebrocket and Alexander Morton of Chapel T O The A CCOUNT OF E X P E N C E S given in, in the name of Mr Stewart of Kype, Captain James Lockhart, and other heritors of Kypesrig. I N this process the objectors were endeavouring to get free of a grievous servitude of a drove-road, almost through the middle of their lands, which was claimed by a great number of persons, as storemasters, in the parish of Douglas, Lesmahagow, and Muir- kirk; and although the Lord Ordinary at first gave judgement against the objectors, yet this was afterwards altered, and the question de­ termined by a judgement of the whole court, in favour of the ob­ jectors. The storemasters having reclaimed, and set forth, That they were not at liberty to use the road called the peat-road, which the objectors had pointed out as the proper passage for the droves, they prayed an alteration of your Lordships interlocutor; or at least that the process might be lifted till the persons having interest in that road should be brought into the field. Upon advising this petition, with answers and replies, your Lordships pronounced this interlocutor." Su- persede further procedure in this cause, till all the heritors, and others having interest in the peat-road within mentioned, are made parties in the cause; and remit to the Lord Ordinary to pro­ ceed accordingly.”. It was for some time a doubt to which of the parties it belonged to call into the field the persons supposed to be interested in this peat- road; at last, however, the objectors being desirous to have the mat­ ter brought to an issue, and having a judgement of the court then standing in their favour, took upon themselves to fulfil the interlo­ cutor, by raising an action as thereby directed. The objectors thought it their duty to call in this action every person who appeared to have the remotest interest in the peat-road; but having reason to believe, that very few of them meant to make any opposition, they insi sted, that a condescendence should be given in of those for whom compearance was made; and accordingly out of the great number cited, only nine were condescended on as compear- i n g i n g Of these only five had any proper interest to make opposition, as having lands upon the side of the road; the lands of the other four lie at a considerable distance; and as the objectors have been well in­ formed, only lent their names at the solicitation of the other five, and upon their promise to indemnify them: As to all the rest, they were either so sensible that the plea of the objectors was well founded, or that their prevailing could be attended with no bad consequences to them, that they did not appear. Indeed, with regard to one or two, their interest coincided entirely with that of the objectors. This, in particular, was the case of Captain Lockhart, whose interest it was that the pursuers should go by the peat-road: for if the droves are to cross at the peat-ford, as pointed out in the interlocutor, they must of course pass over his grounds which lie upon both sides of that ford. The objectors are therefore somewhat surprised to find the name of Captain Lockhart in the title of this account of expences, when it is certain, that he was none of the persons condescended on as compearing in the process; and the objectors can, with some con­ fidence, say, that he gave no authority either by word or writ to use his name. The objectors have made these observations with a view to recall to your Lordships remembrance, that the process for which they have been found liable in expences, was not brought by them wan­ tonly of their own accord with a view to vexatious litigation, but in obedience to an interlocutor of the court, in the course of the origi­ nal process at the instance of the storemaste r s; and for that reason they are hopeful your Lordships will be inclined to modify the ex­ pences. They shall not trouble your Lordships with particular objections to the articles of the account, but only observe in general, that the great articles of lawyers fees, printing, &c. appear to have equally con­ cerned the process at the instance of the storemasters, for which no expences are awarded against the objectors, except that of the extract. This will be evident to your Lordships upon looking over the articles of the account. It is therefore submitted, that at most, only a pro­ portional part of these fees, &c. can be charged against the objectors consi stently with the interlocutor; and that the agent fee ought also to be modified, as being too high for this single branch of the cause. In respect whereof, &c. A L E X. W I G H T.