22nd March 1843
Replies for David McEwen
Writer in Dundee Procurator Fiscal of the
Dean of Guild Court of
Dundee
In the
Answers for James Smith,
Wright Dundee, Peter David
Builder there, William Smellie
Cabinet Maker there, and
Thomas Dick Tailor there
Trustees acting under the
Trust Disposition and Deed
of Settlement of the late
Alexander Matthew Wright in
Dundee
These Answers humbly appear to the Petitioner to be an act Supererogation and
were no means called for or necessary in the circumstances of the case.
The remit by your Lordship upon the 14th current to Mr William Scott, Architect in
Dundee to inspect the Tenement complained of and to report upon oath the true state and
condition thereof & whether the same or any part of it be in a ruinous and dangerous state
as set for the in the petition or if not what repairs may be necessary to be made therein for
the safety of the adjoining properties, and lives of the inhabitants of said building and of the
occupants of other Shops and flats in the tenement betwixt it and Reform Street was made
of Consent of both parties and the Respondents admit this fact in their Answers. The object
of making that remit was to save expense and the Petitioner having no personal interest nor
any desire to crate unnecessary expense thought the course adopted by your Lordship
Judicious and proper. What therefore can be the object of lodging Answers until Mr Scott’s
report appears is to the Petitioners incomprehensible.
The question as to the hazardous and dangerous condition of the gavel wall in
question dispute can only now be settled by Mr Scott’s report, and if the Petitioner has not
been warranted in presenting the application against the Respondents upon the written
information lodged with him by the Conterminous proprietors & occupants your Lordship is
entitled to find accordingly. The Petitioner never heard of the state of the building in
question until the information was lodged with him by the conterminous proprietors or
occupants of the adjoining properties & he begs herewith to produce the information being
a letter addressed to him of date 6 March current subscribed by Thomas Child, William
Crauford and Piers Teven which the Petitioner was to direct your Lordship will consider him
justifying on the said course which the Petitioner has adopted for the interests of the public
and for the protection of the parties residing within or near to the property complained of in
the Petition.
The Respondents had thought proper in their Answers to “content themselves at
present with a general denial of the Allegation in the Petition that the subjects held by them
in Trust are in a hazardous and dangerous condition” or that the gavel is supported by the
shores referred to in the Petition but these averments will be ascertained by the report of Mr
Scott who was as already said mutually appointed to make a report on the property.
Pleas in Law
1. It is the duty of a public prosecutor for the protection of the Lieges to adopt the
proper course to remedy any evil which may be complained of upon as signed information
being lodged with him, and his is not bound altho’ he should in the exercise of his public
duty overstate the facts to prove the whole of them. If a complaint exists the party
complained of is bound to remedy the evil.
2. With the view that the property in question is ruinous and dangerous to the
neighbourhood a remit has been made to a competent party who will determine the facts
alleged.
3. That if by this report when lodged it shall appear that the property in question is
in any shape ruinous or hazardous the Petitioner in the course of his public duty is justified
in his proceeding, and the Respondents must be compelled to put the property in a state in
which the public can have no cause of complaint.
4. In the circumstances of this case and particularly from the unnecessary answers
lodged the Petitioner is entitled to expenses not only of the Petition & consequent procedure
therein but also of these Replies.
In respect whereof
J. McEwen
Drawn by me
Dundee 1st April 1843. The Pursuer consents to hold his Statements as contained
in the Petition & Replies full & final.
For D. McEwen
Wm. Neave