In 1780, James Erskine, Lord Alva commissioned the Italian-trained artist David Allan to depict the Lord of Session and his family together in musical conversation. Allan portrays Lord Alva standing above a seated Jean Stirling, his wife, who gazes at him admiringly as both listen to family's younger members perform a version of the ballad "Helen of Kirkconnel." The painting conveys a sense of domestic tranquility and harmony that is also meant to emphasize the family's wealth and social standing.
But as Lord Alva knew from his days as a practicing advocate and then as a judge on the Court of Session, familial bliss could quickly descend into rancorous discord. Failed marriages, contested marriage contracts, inheritance disputes, unacknowledged children, and family lands were all sources of tension for Scots and their families regardless of social class. Scotland's transatlantic reach complicated any potential litigation; many families had branches in colonial America, the United States, and British Canada, compelling litigants to navigate a variety familiar yet different legal regimes.
The cases presented here describe in detail the court room battles families waged against each other or against external parties in defense their legal interests. They offer an intimate portrait of many families in the British Atlantic as they dealt with legal controversies on local and transatlantic scales.
|John Finlay v. Robert Syme Clerk to the Signet||23 Jan 1773||Hypothec, Debt security||Robert Syme, defender, had in his possession a number of papers belonging to John Finlay, pursuer. Finlay sued his own father, Robert Finlay, and asked Syme for the papers as evidence in the suit against his father. Syme sought to retain Finlay's papers because Finlay was indebted to him. The court twice ordered Syme, by interlocutor, to return the papers to Finlay's custody. Syme refused, claiming that he had a hypothec (security) on the writings in his custody. Syme argued that he was not required to return the papers until Finlay satisfied his debt to Syme. Syme cited authorities for the proposition that agents have a right of hypothec or retention in their client's writings for claims of payment.|
|Janet Telfair v. Dorothea Telfair and Hugh Shaw||1771||Will, Deathbed Deed||The late Samuel Telfair had married defender Dorothea Telfair in 1764. Before his death, on April 8, 1767, Samuel deeded to Dorothea all of his moveable effects as well as a liferent in a tenement of houses in the burgh of Kirkcudbright. Samuel Telfair died on May 10, 1767. Dorothea then married Hugh Schaw. Pursuer Jean Telfair was Samuel Telfair's sister and only heir. Jean sought to void the liferent deed to Dorothea on the grounds that Samuel was of weak mental capacity during the marriage and that he disposed of the property in a deathbed deed. She brought an action for reducing the liferent investment. Dorothea maintained that Samuel Telfair was in an "ordinary state of health" at the time of this disposition and "perfectly sound in judgment." At issue in this case was Samuel Telfair's capacity to dispose of his personal and real property.|
|Mrs. Julian (Steel) Porterfield v. Boyd Porterfield||1770||Marriage, Contract, Obligations||Defender Julian Steel was married to William Porterfield, the uncle of pursuer Boyd Porterfield. William Porterfield died without children, leaving Boyd Porterfield as his only heir. The marriage contract between Steel and Porterfield stipulated that, should Steel survive her husband, Steel would receive an annuity of 2,000 merks and a dwelling house (or the financial equivalent) from the Porterfield estate. Following the death of William Porterfield, Steel and Boyd Porterfield entered into a contract regarding rents from the lands of the estate. Steel alleged that she should have received more from the rents from the lands.|
|Lockhart v. Henderson||7 Dec 1799||Divorce, Infidelity, Adultery||Jean Lockhart sought a divorce from James Henderson on grounds of adultery. Henderson counterclaimed that Lockhart had committed adultery. In 1793, the couple reconciled from a previous split over accusations of infidelity. In the new case, Henderson allegedly resumed his adultery, whereas Lockhart denied any extramarital affairs. Lockhart accused Henderson of marrying for her money. The legal proceedings hinged on whether Henderson's claim that Lockhart continued her adulterous activity barred her divorce proceedings.|
|Isabella Clerk, and her Tutor ad litem v. Sir George Clerk, and his Tutor-at-law||19 Feb 1799||Isabella Clerk sued for financial support from her brothers John and Sir George on the grounds that they were obligated to provide for her. Sir George claimed that natural law did not compel him to support siblings, but only his parents and children.|
|Miller v. Semple||19 Jun 1776||Bonds, Debt||Under a marriage contract executed in 1724, the late John Semple promised his wife Ann Lindsay an annuity of 300 merks. Ann Lindsay's father James Lindsay provided that his estate was to go to his heirs, but it passed to John Semple due to various deaths in the family. In 1747, John Semple sold the estate to John Miller, pursuer. At issue is whether there were debts attached to the estate. Defender John Semple, nephew of the aforementioned John Semple, maintained there were no debts attached to the estate because the earlier Semple received the estate through his deceased son, not through his wife Ann Lindsay. Semple argued that the wife only had a life interest (liferent) in the estate. Pursuer John Miller argued that Semple received the estate by deed of his wife.|
|Macfarlane v. Hoome||1799||Pursuer Christian Macfarlane sought to recover a portion of land at Letter that had belonged to her father, Donald Macfarlane. Mrs. Macfarlane claimed that her uncle, David Hoome Stewart, had fraudulently obtained the land, which eventually devolved to defender Sophia Hoome. In the course of the proceeding, the Lord Ordinary granted a “diligence” (a type of writ) allowing the pursuer to discover writings related to Mr. Stewart’s dealings in the matter. Miss Hoome’s representatives claimed that this discovery would be prejudicial to her interests. Moreover, they argued that the court should not allow the discovery before considering whether the action was barred by certain agreements, including a marriage contract, alleged to discharge Mrs. Macfarlane’s claim to the land.|
|Houston Stewart Nicolson, Esq v. Mrs Stewart Nicolson||6 Dec 1770||Adultery, Divorce||Houston Sterwart-Nicolson was married to Mrs. Sterwart-Nicolson in 1764. Mr Nicolson having brought an action of divorce against his wife for adultery, supposedly with William Grahame a employee and servant of Sir William Maxwell of Springkell, brother-in-law of the pusuer. Mrs Nicolson made a declaration of her innocence, and she insisted that the pursuer misled the situation and created artful stories about his adultery. She, as the defender, objected to the charges and questioned the competence of the witness that her husband, Mr. Nicolson, presented because all of them were servants of Sir William Maxwell, pursuer's brother-in-law.
|Philip Millar, Oculist in Edinburgh v. Francis Angelo Tremamondo, Master of the Academy, Edinburgh||29 Jan 1771||Obligations under contract of marriage||Philip Miller performed a surgery on Francis Angelo-Tremamondo, which saved his sight. They became good friends. Francis Angelo-Tremamondo convinced Miller to marry his only daughter, Mary Tremamondo-Angelo. After the marriage, Mr. Millar brought an action against Francis Angelo-Tremamondo because he breached the marriage contract. He had agreed to give to the pursuer a diamond ring, to furnish a house for the new couple, among another things. The agreement and the promises were not in writing. The pursuer tried to enforce Mr. Angelo-Tremamondo's promises. The defender maintained that since the promises alleged were given verbally they could not be substantiated by other witnesses.
|Richard Dick v. Robert Lindsay and Others||21 Dec 1776||This case was about the effect of a marriage contract on a father’s power to disinherit his children. The marriage contract between Robert Dick and Margaret Ainslie included a provision whereby Robert disponed his entire estate to his children. Robert subsequently executed new settlements providing that his children, Richard and Mary, would receive annuities, while the remainder of his estate would be placed in trust for Richard’s children. Richard and Mary sought to have the settlement declared void, arguing that it was barred by the marriage contract. However, Robert’s trustees argued that the new settlement was within his power under the marriage contract.|
|Young v. Scotts||3 Jul 1777||Illness, Convalescence, Oath, Female Succession, Flesh Market||A month before his death, Jedburgh merchant John Young settled his heritage upon the daughters of his older sister, although his customary heir was Andrew Young, the eldest son of his younger brother. Andrew Young then sold his right to this heritage to his sister, Agnes, who raised an action of reduction of Young's disposition on the head of deathbed, because he had died within sixty days of its execution. The defenders asserted to Lord Covington that Young had recovered his health just before his death, and produced two witnesses who swore that they had encountered Young at the Flesh Market after he had executed the disposition. Covington pronounced that Young had indeed recovered. The pursuers then petitioned the Court to alter this interlocutor. They asserted that numerous countervailing testimonies cast doubt on whether Young had really visited the Flesh Market in the weeks before his death. On July 3rd, 1777, the Court adhered to Lord Covington's interlocutor. The pursuers submitted another petition, emphasizing that the oaths of the two witnesses to Young's alleged convalescence were unreliable: "Robson is in low circumstances, and considerably in debt to the defender in this reduction; and Laidlaw is in a manner subsisted upon charity." Marginalia on the second petition indicates that the Court may indeed have altered their decision on August 6th, however reports of this case mention no such revision.|
|Archibald Douglas of Douglas v. Douglas, Duke of Hamilton||27 Mar 1779||Deed||This case constitutes an appeal to the House of Lords and Court of Session regarding an infamous earlier case, dubbed "The Douglas Cause." That case, which was settled by the House of Lords in 1769, revolved around the contested inheritance of the vast wealth of the Duke of Douglas, who died in 1761. The heir-male to the Duke of Douglas, the Duke of Hamilton, contested the property claims of Archibald Douglas, the son of the Duke of Douglas' sister, from many angles. In this last-ditch appeal, brought before the Court of Session and House of Lords, the Duke of Hamilton asserted that a 1744 deed of revocation put forth by the late Duke of Douglas was in fact a settlement of succession that disinherited his sister, Lady Jane Douglas, from all properties that had been passed to the family through investiture. On December 19, 1778 the Court of Session found that the Duke of Hamilton had no claim under the deed of October 16th, 1744, declaring it a deed of revocation and not of settlement. On March 27, 1779 the House of Lords dismissed an appeal of the Duke of Hamilton. The memorials submitted to the Court of Session in October of 1778 contain a history of the Angus and Douglas families and their investitures, and an overview of similar cases to "The Douglas Cause."|
|Janet Robertson v. James Allan, Messenger in Perth||27 Feb 1777||Paternity, Adultery, Oath in Supplement||On January 26th, 1775, Janet Robertson appeared in front of the kirk-session at Perth and accused James Allan of fathering her unborn child. Shortly after the birth of her daughter she brought action against Allan before the Magistrates of Perth for aliment. After a number of witnesses were called, most of whom testified in support of Robertson, the magistrates ruled that Allan was the father of her child. James Allan then appealed to the Court of Session, and Lord Auchinleck assoilzied (absolved) him, stating that due to lack of evidence and the supposed dishonest character of the pursuer, she was not entitled to her oath in supplement. Auchinleck based his judgment that Robertson "has no regard to truth, nor to honesty" upon the fact that she had originally accused John Allan, the nephew of the defender, of fathering her child. Upon petitioning the Court to alter Auchinleck's interlocutors, Robertson claimed that James Allan, who was married, had persuaded her to name John Allan, who was unmarried, as the father. A number of witnesses supported her claim that before giving birth she had met with the defender one night in the North Inch, where he had given her a 20-shilling note and half a guinea, "in order to induce her to give the child to his nephew, or to any body, except himself." The Court adhered to Auchinleck's interlocutor, determining that an oath in supplement may not be admitted in cases of adultery.|
|Isabel Howie, Martha Buik, and the Kirk-Session of Alyth v. The Kirk-Sessions of Arbroath and St Vigean's||25 Jan 1800||This case was about how to determine which parish should pay for the maintenance of an impoverished child. The child, Anne Coathill, was born in Arbroath, but she and her parents, James Coathill and Janet Buik, soon moved to St Vigeans. After Janet died, Anne was sent to live with relatives in Alyth, including pursuers Martha Buik and Isabel Howie. Joined by the Kirk-session of Alyth, these relatives sought maintenance from the parishes of Arbroath and St Vigeans. Case documents include several depositions.|
|Jean Farquharson v. Alexander Anderson||2 Dec 1800||After having a child outside of marriage, Jean Farquharson brought an action against Alexander Anderson for declarator of marriage or, in the alternative, damages for seduction. Anderson denied fathering Farquharson’s child. To prove their cases, the parties proffered many depositions of local residents who had witnessed events material to the case. Alleging that Anderson had engaged in a scheme of witness tampering, Farquharson objected to the admissibility of several such depositions. Case materials include reprinted depositions, excerpts from depositions, and references to many individuals in the local community.|
|Macgregor, and Campbell v. Campbell||28 Nov 1801||This case was an action for declarator of marriage and legitimacy. Pursuer Katharine Macgregor lived with Lieutenant Duncan Campbell for a number of years prior to his death, and the two had a son. Macgregor initially served as Campbell’s housekeeper, but she alleged that during the year before his death, they traveled to Kinghorn and were married. Macgregor produced depositions from a number of witnesses who testified that people in the couple’s neighborhood commonly believed that they were married. However, the defenders, who were relatives of Lieutenant Campbell, argued that his statements to that effect were unserious, and that Macgregor had not required others—especially Campbell’s servants—to address her as the lady of the house.|
|Alexander Watson v. John Pyot||28 Jan 1801||This case concerned a father’s power to dispose of an estate that was the subject of a marriage contract, to the detriment of his son by that marriage. The son, Alexander Watson Jr., was the pursuer. A marriage contract between his parents, Alexander Watson Sr. and Jane Fulertoun, required Alexander Sr. to resign the estate of Turin to himself and the heirs-male of the marriage (and failing that, to certain substitutes). While still living, Alexander Sr. gave Alexander Jr. a portion of the lands included in the contract, along with certain lands that he acquired after making the contract. Subsequently, Alexander Sr. executed a series of deeds curtailing his son’s right to the estate, including a disposition of the remaining lands in favor of John Pyot, a distant relative. Alexander Jr. sought to have these deeds set aside on the ground that they violated the marriage contract. However, John Pyot claimed that Alexander Jr. had relinquished his claim by accepting the previous conveyance from his father.|
|Tait v. White||28 Feb 1801||After Mary Tait’s husband William White left the country, Tait sought alimony from her father-in-law, George White. George, a small farmer, denied that he was obligated to support Tait and her infant child. He argued that this burden should fall on Tait's parish of residence, not solely on him, and that support obligations had only been extended to relatives in cases where a man of rank was required to provide for his heir. Tait argued that the duty to aliment children applied equally to all classes of society.|
|Crawfurd's Trustees v. Hart's Relict||20 Jan 1802||This case determined whether Janet Hart could claim the legal entitlements available to a widow. Hart cohabited with the decedent, William Crawford, for thirty years and produced children with him. However, the couple declared their marriage just 10 months before Crawford’s death. Under Scots law, this raised the question whether Hart was entitled to the jus relictae—a widow’s right in the movable estate of her deceased spouse.|
|Kemps v. Ferguson||2 Mar 1802||This case was about the effect of a testator’s handwritten markings on his duly executed deed of settlement. David Simpson executed the deed in question, naming his cousin William Simpson of Pendreich as the general disponee. The deed also included a £3000 bequest to David’s uncle William Ferguson of Raith, which offset a bond that Ferguson owed to David. William Simpson predeceased David. When David died, it was discovered that he had marked on his deed of settlement, apparently intending to substitute Ferguson as the general disponee. Pursuers David and Agnes Kemp, the children of David’s late sister, were his heirs-at-law. Arguing that David’s markings invalidated the deed, they proceeded as if he had died intestate and brought an action against Ferguson for payment of the £3000 bond. Ferguson admitted that the pursuers were entitled to the residue of David’s estate, but he argued that David’s specific bequests—including the £3000 in his favor—remained valid. Therefore, in Ferguson’s view, his debt had been satisfied.|
|Cowan v. Mac Candlish||1770||Paternity, Suit||Mary Cowan had alleged before the sheriff of Kirkcudbright that MacCandlish had fathered her son in 1765. She obtained an order compelling him to pay child support. MacCandlish claimed that her case was unproven, and that the sheriff had acted improperly in taking depositions from two witnesses when neither MacCandlish nor his procurator were present.|
|Orr v. Paterson, and Others||1773||Competent||This case was about a testator's mental capacity to execute a series of deeds. Orr, the pursuer, asked the court to set aside three deeds that John Logan executed in favor of his wife, his nephew, and another individual. Orr alleged that Logan was not of sound mind when he executed the deeds. The defenders claimed that while Logan showed certain symptoms of old age, his mental capacity was not impaired.|
|Drew v. Calder||1778||Bill (Financial Instrument), Credit||Thomas Calder died owing money to his brother-in-law, Charles Drew, and to Drew's brother, Robert. When Charles Drew went bankrupt, Robert Drew pursued John Calder of Davidstoun, brother of the late Thomas Calder, for sums owed. Lord Monboddo, the Lord Ordinary, ruled that John Calder was indeed liable for his brother's share of the debts, but Calder petitioned the Court of Session contesting this decision. He argued that the various bills granted by Thomas Calder to the Drew brothers were not for value received. Rather, he argued that these bills represented lines of credit that were never spent. Robert Drew answered that the bills were clearly given for value received, and that John Calder was merely trying to draw out the litigation process in order to postpone settling his brother's debts.|
|Gelly and Campbell v. Campbell||1778||Heir and Executor||Alexander Campbell died intestate on December 9, 1769. After his death, an unsigned note was found among his effects, which expressed his intentions regarding the settlement of his estate. His eldest son, John, agreed to execute the terms of this settlement, which bequeathed £600 each on two of his daughters, Isabel and Margaret, who were at the time unmarried. Several years later, after both daughters had married, their husbands brought action against John Campbell for negligence in managing his father's estate. They requested that the estate be placed in the hands of an executor. One of their grievances concerned a three-acre plot in the Broomielaw, which Campbell had purchased from the estate for the price of £50. The pursuers stated that Campbell's unwillingness to grant them this land against their claim of £1200 was evidence that he had purposefully misrepresented its value. The case came before Lord Auchinleck, who authorized the pursuers to name an alternate executor. John Campbell then petitioned the Court to review this interlocutor, stating that the impatience of his brothers-in-law was a result of their ignorance of commercial matters. The pursuers responded that the eight-years delay in the settlement of the estate was in fact the result of gross negligence on his part.|
|James Sinclair v. Robert Anderson and Others||20 Nov 1771||In 1705, James Fraser concluded a marriage contract with Margaret Torry, the daughter of John Torry, who held lands and tenants in Elgin. Margaret was heir to her father's property, and the marriage contract granted James the right to the rents, fees, duties, etc. of the Elgin tenants for his life should Margaret pre-decease him. Margaret and James had three children, and by the time of this lawsuit only their daughter, Margaret Fraser, remained alive. In the 1720s, James's financial affairs began to fall in disarray and he attempted to sell his wife's heritable lands, triggering a series of legal disputes resulting in the land's sequestration. After the death of James and his eldest son, John, James's creditors laid claim to the Elgin rents and fees. James Sinclair challenged the creditors in the Court of Session, arguing that his grandfather's right to his grandmother's heritable lands ceased with his death, devolved on his now dead uncle, and subsequently now fell to his mother. In other words, the heritable lands ceased to be part of James Fraser's estate when he died and reverted to his wife's estate, subsequently inherited by her children. Sinclair contended that as the heritable lands constituted part of James Fraser's estate in life only, his creditors had no claim to them after his death. The Court of Session agreed and found for James Sinclair.|
|Jamieson v. Kyle||1778||Jus Quaesitum Tertio, Tocher||In June 1756, Janet Jamieson and David Kyle signed a post-nuptial contract, naming each other as heirs, and after that the heirs of the longest-lived. Under the same contract, John Jamieson, Janet's father, transferred some lands to the couple. Seven years later, David Kyle and Janet Jamieson entered into another contract, which unreservedly conveyed and transferred the lands in question to Kyle's heirs. Kyle then brought action to reduce the contract of 1756, and John Jamieson and his son, John, defended against it. Kyle claimed that the 1756 contract was invalid because Janet Jamieson was unable to sign her name in her own hand, but did not produce any proof. The action went dormant until 1777, when David Kyle advertised a sale of these lands. John Jamieson, junior, executed an inhibition of this sale, and in return Kyle sought to overturn the inhibition. The case came before Lord Kennet, who sustained Kyle's claims. Jamieson petitioned the Court for review, arguing that he was the feur of the lands in question, and had acquired this right from the onerous obligations in the 1756 marriage contract. According to handwritten marginalia, the Court unanimously refused Jamieson's petition.|
|Ranking of Orr of Watterston's Creditors||1777||Ranking of Creditors, Conjunct and Confident Persons, Onerous Creditor||This case concerns a competition over the ranking of the creditors of Robert Orr of Waterstone, whose affairs went into disorder in 1767. One year after a horning was denounced against him, he gave a principal settlement in favor of his wife and children, Isobel Rowan and Janet and Elizabeth Orrs. When Rowan and her daughters entered this interest into the ranking, objections were made on the grounds that a settlement made by a bankrupt person in favor of conjunct and confident persons, with no onerous cause, could not compete with the rights of creditors. Lord Kennet, Ordinary, sustained these objections in July of 1776. The following March, Rowan and the Orr children petitioned the Court to review this interlocutor. They argued that Orr's settlement in favor of his family was indeed onerous on their account, as a replacement for the fact that Orr and his wife had no marriage contract. Furthermore, they argued that the settlement was also onerous due to the fact that it had been granted in return for the £400 sterling in dowery money that Rowan's brother had given Orr. As a final point, they added that although the period of time that had elapsed since Lord Kennet's interlocutor had rendered his decision final, they asked for special dispensation: their former agent, William Wilson of Soonhope, had died around the time objections were being made to their interest, and their next prospective agent, James Sommers, declined on account of a conflict of interest. "Indeed it is only within these two days that the petitioners, by the assistance of friends, have been able to afford the expense of printing this petition to your Lordships."|
|Greig v. Johnston||1782||Aliment, Proof||Helen Greig sued Archibald Johnston for maintenance of a child alleged to be his. Johnston argued that Greig had already discharged her maintenance claim as part of a settlement agreement. Greig denied having discharged the claim, and challenged the evidence offered by Johnson.|
|Braimer v. Innes and Lothian||1788||Documents available. Full description in progress.|
|Burt v. Lord Justice Clerk's Interlocutor||1789|
|Coventry v. Lord Hailes' Interlocutor||1787||Documents available. Full description in progress.|
|Crawfords v. Russell, et al||1789||Documents available. Full description in progress.|
|Inglis v. Lord Dreghorn's Interlocutor||1789||Documents available. Full description in progress.|
|Maxwell v. Lord Swinton's Interlocutor||1789||Documents available. Full description in progress.|
|Morison v. Inner-House Interlocutor||1787||Documents available. Full description in progress.|
|Stobie v. Morison, et al||1788||Documents available. Full description in progress.|