Stewart — Answers, 2 Aug 1773 (Box 2)

Untitled August 2. 1773. A N S W E R S F O R ANSW ERFO o f R o f Kype, and others, Heritors of Kypesrig or Long Kype-muir; T O T H E OBJECTIONS of Joseph Allan of Castlebrocket, and A- lexander Morton of Chappie, Pursuers, to the De­ fenders Accompt of Expences. THE respondents apprehend, that when the circumstances of this case are recollected by your Lordships, you will be sa- tisfied, that never was there a cause in which expences were more ju stly found due than the present. The objectors have stated to your Lordships some circumstances, in order to lead you to modify the accompt which is given in; but when these are properly considered, they will make no impression on your Lordships. The objectors have said, That in this process they were endeavour­ ing to get free of a grievous servitude of a drove-road, almost through the middle of their lands: But this circumstance can serve as no a- pology for harassing the respondents, the heritors of the grounds contiguous to the peat-road, with this process. The peat-road had never been used as a drove-road; and the more grievous the servi- tude of a drove-road is, the more inexcusable must the objectors be, in endeavouring to load the respondents with this servitude, which they must have well known, the respondents had never in former times been subjected to. The objectors have observed, That they did not bring this process against the respondents till there was an interlocutor of the Court, superseding all further procedure in the cause, at the instance of the storemasters, storemasters, till all the heritors, and others having interest in the neat-roads, were made parties; and have pleaded, that this is a cir- cumstance which should incline your Lordships to modify this accompt But when the reason, why your Lordships pronounced that inter­ locutor, is attended to, it is imposib le that it can serve as any apo­ logy for the objectors conduct in this affair. Your Lordships will recollec t that, from the beginning to the end of this cause, the store- masters declared, That the peat-road would be as convenient for them, as that which they were claiming through the objectors grounds: That it was shorter and more commodious in other re- spects; but then they were obliged to admit, That they had no right to it; that they never made any use of it as a drove-road; nor did they know that sheep had ever been in the use of passing along it. Notwithstanding this candid declaration of the storemasters, the ob- jectors, Allan and Morton, thought proper to aver, That the store- masters had been (in contradiction to what they had themselves said) in the practice of using this peat-road, and of driving their sheep up­ on i t: And they averred, that if your Lordships would allow them a proof of this, they would be able sufficiently to prove it. It was up­ on these strong averments of the objectors, that your Lordships sisted procedure till the heritors of the peat-road were made parties. When the procedure was si sted, it was the objectors, and not the storema- sters, who brought the respondents into the field. When they were brought into the field, it was the objectors only who si sted themselves against the respondents, and still maintained, that the peat-road had been used as a drove-road; and upon this account it was that par­ ties went to proof. Your Lordships will remember how the proof turned ou t: All your Lordships were satisfied, that there was not the smallest degree of evidence that ever this road had been used as a drove-road; that the storemast ers had been right in what they had said upon this subjec t; and that the objectors had brought the re­ spondents into this process, without having the smallest foundation for so doing. If ever, therefore, there was a cause, in which full ex- pences fell to be allowed, the respondents think they are entitled to conclude, that it is the present. The objectors have found fault with the name of Captain Lockhart appearing in the title of the accompt of expcnces, upon this ground, that Captain Lockhart has not compeared in this process. This cir- cumstance of Captain Lockhart’s having compeared, or having not compeared in this process, can surely make no difference. The fact is t hat the objectors, in their summons, called a great number of persons, who, not thinking that they had any interest in this que- stion have not appeared. But this can have no effect as to the pre- sent sent question. If indeed it could have any influence, it ought to be in favour of the respondents. For the smaller the number is who have appeared in this process, as thinking themselves interested in it, so much the heavier must the expence of this process have fallen upon them, and so much the greater reason is there for their being indem­ nified of that expence. As to Captain Lockhart’s name appearing in the title of the accompt, this was occasioned by his being the person first cited in the summons at the instance of the objectors, and his name stands in your Lordships decerniture assoilzieing the respond­ ents, and finding them entitled to expences. This circumstance of his name appearing in your Lordshi p ’s interlocutor, and that of his paying for putting up the captain’s absolvitor in the minute-book, led the agent, in giving in his accompt of expences, in conformity there­ to, to insert the names of the persons mentioned in that absolvitor. The objectors have, in the last place alledged, that the great arti­ cles of lawyers fees, printing, ANS appear to have equally concerned the process at the instance of the storemasters, for which no expen­ ces are awarded against the objectors, except that of the extract. With regard to this, it is expressly denied, that there is any one of the above articles of this accompt, which concerns the process at the instance of the storemasters. The fact is, That though the storema­ sters have uniformly admitted, that, in their apprehension, they had no right to the peat-road, yet,.as this road was equally, if not more convenient for them, as that through the objectors grounds, it was by no means their interest to assi st the respondents in their defence. Ac­ cordingly, in all and every step which has been taken in this process, the storemasters and the respondents have never once yet acted in con­ cert together; nor, as has been said, is there one article of the accompt given in, which has been disbursed in order to assist the storemasters in this process. The only article in this accompt relative to this pro­ cess, at the instance of the storemasters, is the third article of the ac­ compt, v i z. " One shilling paid for a loan of Porteous, and others, process against Allan and Morton, to examine the connection be- tween the two processes That it was necessary, that this process, at the instance of the storemasters, should be examined into, after the respondents had been called into it, in order to be made parties thereto, your Lordships must be sensible at first sight, and therefore it is unnecessary to say any thing more upon this particular. Upon the whole, As no particular objections are made to this ac­ compt, and as in fact, instead of the expences being overcharged, there are sundry articles which have been disbursed, that are not stated; the respondents can have no doubt, that your Lordships will decern conform to the accompt given in. WE RFOoFNf KyFRFpe, ANS WI LL. C RA I G