Hood Family and Coal Mining

Clerk v Ross and Others


7. 'Replys for George Ross and Others to the Answers of Sir Jas Clerk & Mr John Clerk to their Condescendence 1771'




Replys for George Ross and others coalliers defenders to the answers and additional answers for Sir James Clark and Mr John Clark to their condescendence


As the tendency of this action is to deprive the defenders of the liberty they have enjoyed for many years and to reduce them to a state of slavery not be equalled in any civilised society under pretence that they are bound coalliers of General James Lockhart of Dryden and transferrable by him to the pursuers.


The defenders in the 2nd class have denyed that they are the bound coaliers of Genll Lockhart and consequently a proof must the allowed. But before entering upon such proof the expense whereof the defrs are not well able to bear it is with all submission though necessary that the pursuers to specially condescend upon the time each of the defenders did make their entry to the Coalworks of Dryden by which act they dureing their lives became the sole property of General Lockhart - This the pursuers may easily do, for if any such entry was made it behoved to be recorded in the books belonging to the Coalworks as is the general custom.


2nd, As the pursuers in their answers have say'd that General Lockhart was in use to reclaim them from other Coalworks The pursuers ought to condescend upon the time when, and the persons from whom the defenders were reclaimed by General Lockhart this condescendence being made it will generally shorten the proof as if true the facts will be acknowledged by the defrs. On the other hand if they shall go to proof the defenders will be hereby enabled to bring evidence of their being engaged at other coal works before the time the pursuers can condescend they entered at Dryden whereas in this loose way it is impossible for the defenders to call a witness till they see how the pursuers mean to prove their lybell.


With regard to the 3d class, the chief reason the pursuers have to suspect that they are bound Coaliers of General Lockhart is that they were present at the solemnizing the birthday of the General at Dryden and were entertained at his expense and entered themselves as coaliers upon his books.
Before going into proof it is submitted if these books ought not to be produced.


But supposing it a fact that some of the 3d class of defenders being invited by the old coalliers of Dryden did join in the rejoicing on the anniversary of the general's birthday and supposing some of the General Lockharts servants took a list of those that were entertained at his master's expence It is submitted if such an act tho' proven could infer a bondage upon them in favour of General Lockhart and his heirs during the remainder of their lives and constitute such a right of property in them as the General is found entitled to by your Lordships interlocutor in this cause with respect to the first class of defenders who acknowledged themselves the bound Coaliers of Dryden and which is now final.


It also be necessary to take evidence of a mistake in the defenders condescendence page 3d. It is there said that some of the defrs of the 2d class entered voluntarily & wrought to Mr Stodhart at Dryden, left him when they thought proper, and had not wrought at Dryden since he gave up the coalworks. Now the fact is that few or none of them wrought to Mr Stodhart. But when Mr Johnston & Co entered to these works as they gave as good encouragement as any other Coalmaster they wrought to them as free coaliers and left them when they pleased without challenge

21st February 1772 Lod Hails

The Lord ordinary having considered the condescendence for George Ross and others defenders, answers an additional answers for Sir James and John Clark pursuers, replys for the defenders and certificate of James Stoddart Finds that the defenders whose fathers were the Bound colliers of Major General Lockhart or his predecessors in the Estate of Dryden are not upon that account to be held as bound coalliers, but that the pursuers for supplying the conclusions of their lybell must instruct that those defenders did actually entered to the work in Major General Lockharts coallierys or otherways engage themselves therein for life, finds that the certificate of James Stoddart dated the twenty third of January last affords neither proof nor presumption that the persons therein named were the bound coalliers of Major General Lockhart and under the limitations and restrictions abovementioned allows the pursuers a proof of their lybell answers and additional answers and the defenders a proof of their condescendance and replys and allows both partys a conjunct and for that end grants Commission to such a person or persons as shall be named by each party dues before extract for taking the others proof and in case they fail to name on the person or persons named fail to accept or attend to the judge ordinary of the bounds to take the said proof and that [ blank ] any of the lawfull days betwixt and the twelfth of June next and assigns the said day for reposting to the Lord ordinary and grants diligence hinc inde

Dav: Dalrympll



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