The poet Agnes McLehose [John Miers, Mrs Agnes McLehose, 'Clarinda', 1759 - 1841. Friend and correspondent of Burns, 1788. National Gallery of Scotland. ]

The silhouette of the poet Agnes McLehose serves a metaphor for a woman's legal rights in the British Atlantic world.  Women like her navigated and contested numerous laws and legal traditions that shaped their lives in significant ways. In the male-dominated eighteenth and nineteenth centuries, women faced considerable legal constraints over their property as well as their bodies. Much depended on a woman's marital status and the legal regime under which she lived. In many British Atlantic spaces, especially in England and America, marriage transformed a white woman into a feme covert or covered woman. Under the legal doctrine of "coverture," a woman's husband possessed legal control over her property. An unmarried women, a feme sole, retained greater authority over her own effects. Enslaved women had little to no legal existence beyond their status as their master's chattel property. 

By contrast, coverture had no formal basis in Scottish law. To be sure, Scottish men through social custom and other laws exercised great authority over the women in their lives, but Session Papers reveal in detail how women like McLehose aggressively defended their legal interests before the Court of Session. Her ghosted portrait represents her own very personal connection to the court. The married Maclehose became embroiled in a major intellectual property lawsuit over the contents of love letters exchanged with the poet Robert Burns. In 1804, the Lords of Session, including McLehose's cousin William Craig, Lord Craig, ruled in her favor. 

The cases offered here explore women who were named as the primary litigants in a lawsuit. They represent a remarkable opportunity to investigate how Scottish, English, and American women pursued claims and defended their legal interests before the court in this period. 

 

 

Related Cases

Case Date Legal Subjects Abstract
Erskine v. Hay-Balfour 13 Jan 1767 Bonds In 1717, James Balfour of Randerstoun and Thomas Hay of Edinburgh granted bond to Thomas Erskine. Upon Erskine's death, his three daughters each inherited a one third share of the bond. Janet, the youngest daughter, died without issue. This case involved a dispute over whether or not the other two sisters had a lawful claim to the full bond payment, including Janet's third and its interest. The defender, John Hay-Balfour and his Tutors, claimed that the two living sisters failed to take the legal steps required to vest in them Janet's share of the bond. Handwritten note on front page reads "refused."
Murray v. Earl of Breadalbane 1767 Exhibition Ad Deliberandum, Heir-apparent, Entail, Tailzie, Succession Pursuers Mary and Margaret Murray, who claimed to be heirs apparent to the estate of Shian, brought an action of exhibition ad deliberandum; that is, they sought the production of documents to help them decide whether to take up the succession. The Earl of Breadalbane claimed that he had obtained good title to Shian, blocking the Murrays’ succession. Therefore, he sought to avoid producing additional documents.
Mrs Anne Nielson, &c v. Austins 14 Jan 1767 Aliment, Debt This case involved a dispute over how much money a husband owed his wife's family in aliment so that the wife could live with her family and the marriage could remain secret. William Sloan (deceased) and Anne Nielson (the Pursuer) married in secret in 1752 when Nielson was only seventeen. At the time, Sloan was in divinity school and felt that the relationship would be perceived as inappropriate for a man of his upbringing and occupation. Once married, Sloan claimed that revealing his part in a secret or clandestine marriage would be equally fatal to his career. In 1754, he granted bond to Neilson's trustees, her brother and uncle, to pay an annual stipend to Nielson's family to cover her living expenses. During their marriage and until Sloan's death in 1765, Anne Nielson and William Sloan never lived together as husband and wife. Sloan lived and worked as a minister in Dunscore, while Nielson lived with her mother in Edinburgh. When the case came before the Court of Session in 1765, the Court ruled that Sloan, who had died in debt, could only have been expected to pay Anne Nielson what he could reasonably afford, and the Court reduced the yearly payment due to Anne Nielson from the amount claimed by her trustees. The Nielson family appealed this decision. Sloan's executors also argued that due to Nielson's silence about her marriage when Sloan was alive, Sloan's creditors had no knowledge of Sloan's financial obligations to his wife at the time they lent him money, and that her latent claims to aliment were now unjustly delaying repayment of debts due to Sloan's creditors.
Ker v. Creditors of Sutherland 1772 Debt, Ranking of Creditors, Estate Alexander Sutherland of Kinminity granted a bond to the late Alexander Gordon of Garty. Gordon used this bond as collateral in dealings with other persons. Pursuer Elizabeth Ker's late husband, James Ker, was one of Gordon's creditors. Ker sought to collect on the bond, and he obtained for himself, and as assignee on behalf of certain other persons, a decree of adjudication against Alexander Gordon's son. Elizabeth Ker sought to collect on the bond on her late husband's behalf. Creditors of Sutherland, including George Dunbar, also sought to collect on the bond. At issue was whether Ker's claim could be treated pari passu (on equal footing) with the claims of Sutherland's creditors, such George Dunbar. Elizabeth Ker maintained that her husband's adjudication was timely, within a year and a day of another creditor's adjudication, so she should be ranked in her due order of preference. The creditors of Sutherland maintained that they had priority over Ker.
Margaret Scruton v. John Gray 1 Dec 1772 Marriage, Jurisdiction, Alimony Gray, defender, was a native of Cork, Ireland who attended university in Scotland. Scruton, pursuer, claimed that she and Gray married in Glasgow while he was attending college there. Scruton sought a "decree of declarator" from the Commissary Court of Edinburgh to find them to be husband and wife. (Commissary Courts were established in Scotland in the 1560s and had exclusive jurisdiction in marriage and divorce cases.) Scruton also sought alimony from Gray. Gray denied that any marriage took place. There was no public solemnization of the marriage, nor any cohabitation as husband and wife. According to Gray, there was only a "private interview" between the two. Gray also denied that the Commissary Court of Edinburgh has jurisdiction over him since he was a foreigner.
Alexander Gordon of Culvenan, and Jean Macculloch, Elder Daughter of John Macculloch, Elder of Barholm v. James Dewar of Vogrie, John Macculloch Elder, and John Macculloch Younger, of Barholm 2 Aug 1771 Entail John Macculloch's estate, which encompassed a considerable land-estate in the stewarty of Kirkcudbright and shire of Wigtown, was subject to a settlement containing strict prohibitive, irritant, and resolutive clauses. This case is a dispute over inheritance claims following Macculloch's death.
Boyd Porterfield of Porterfield v. Joanna, Margaret, and Lilias Porterfields 6 Dec 1771 Land, Title Dispute Boyd Porterfield, the pursuer, claimed that he was entitled to the lands of the Porterfield family in Hapland following the death of his cousin, Gabriel. Boyd was the grandson and heir of Alexander Porterfield, who, in turn, was a cousin of Gabriel Porterfield. In 1716, Gabriel granted a bond of tailzie to Alexander. Boyd claimed that he was entitled to the lands based on the tailzie. Gabriel's three daughters, Joanna, Margaret, and Lilias, along with their husbands, challenged Boyd's claim to the lands and sought to control their father's estate.
McHarg v. Dunn 1771 Debt, Estate Pursuer Agnes McHarg sought to collect from defender William Dunn on a bill payable to her late husband, Alexander McCredie. Dunn challenged the authenticity of the bill, relevant dates, and the rate of interest. McHarg maintained the bill was authentic and properly dated from 1748. McHarg also cast doubt on Dunn's testimony and allegations.
Donald v. Murdoch 1771 Debt Charger Susan Murdoch sought to collect on a bond from suspenders Robert Donald, James Hepburn, and Walter Stirling. Stirling was also a nephew and factor to Murdoch. The suspenders refused to pay on the bond, alleging that Murdoch suffered from mental infirmity and old age ("weak both in body and in mind"). Murdoch denied this charge and maintained that the suspenders fabricated this allegation to delay or avoid payment on the bond. The suspenders denied that they were trying to take advantage of Murdoch. They maintained they were still obligated to pay on the bond at five percent interest. They also argued that Murdoch is not capable of taking care of her own affairs, and that other individuals in Murdoch's life were trying to get their hands on the money from the bond.
Jean 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.
Ross v. Woodman 1770 Employment Pursuer David Ross was the manager of the Theatre-Royal of Edinburgh. Defender Esther Woodman was an actress in the theatre's productions. Esther entered into an employment contract with Ross after receiving her husband's (Thomas Woodman) consent. Ross eventually fired Esther Woodman because she refused to take on certain roles in the plays and did not show up to rehearsals. Following her dismissal, Esther and Thomas Woodman brought an action against Ross before the sheriff of Edinburgh, seeking a weekly salary for the term of Esther's employment contract. Ross maintained that Esther was justly and properly dismissed based on her improper conduct, and that she was not entitled to her weekly salary under the employment contract.
Jacobina Macfarlane v. Alexander, Richard and Janet Spence 1770 Contract of marriage, Succession Archibald Marcfarlane married Elizabeth Spence as a result of a contract entered into between both spouses and Elizabeth's father William Spence. Archibald Macfarlane became bound to provide for his wife and future children. Archibald Marcfarlane made a further settlement of his estate, with a disposition in favor of his wife and children, and failing of them, to the petitioner Jacobina Macfarlane, his only sister. When Archibald Macfarlane died, Elizabeth Spence, his widow, took the whole of her husband's writs into her possession. When Elizabeth Spence died, Jacobina Macfarlane, pursuer, claimed that by Spence's death the right of succession devolved upon her. However, Elizabeth's brothers and sister, Alexander, Richard and Janet Spence, seized the writs and confirmed themselves executors. Thus, the pursuer claimed her right to be the heir of her brother and alleged that defenders have no foundation to alter the effects of her brother's disposition.
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.
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.
James Sellars v. Ninian Anderson 22 Jul 1778 Emotion, Oath, Injury, Security (Physical and Mental) At the beginning of 1777 James Sellars, Robert Sellars, and Marion Sellars brought action against Ninian Anderson for having brought a "causeless" action of lawburrows (a warrant for extracting legal security to keep the peace) against them. They charged Anderson with malicious and vexatious intent in bringing this action, while the defender replied that he could prove the grounds upon which he had brought it, although he was not required by law to do so. The case came before Lord Covington, who ruled that because the defender had originally offered proof, he was required to provide it. Anderson petitioned the Court to alter Covington's interlocutor, arguing that Scots law was clear that a person taking out lawburrows was only required to swear that he dreaded harm from the recipients of the action. He further argued that the pursuers could not make a claim to damages, as repercussions would only follow if they were to commit unlawful harm. The pursuers answered that the lawburrows against them had indeed caused harm, for their forced march from Meikle Govan to the Glasgow town-house to provide caution had led to public humiliation. The Court altered Covington's interlocutor, finding that the defender was not required to justify the grounds of his application for lawburrows. Upon receiving a reclaiming petition from the pursuers, the Court adhered. Lord Barskimming remarked, "We will not cut a man out of his just right because he hastily offered to prove before an Ordinary what he was not obliged to prove."
Mrs Florence M'Leod v. Mr John Nicolson 4 Aug 1768 Pursuer Florence Macleod brought an action against Mr. John Nicolson, claiming that he had intromitted with the effects of her late husband Donald Nicolson (i.e., that John had taken Donald’s effects without legal authority). John admitted this intromission. However, he alleged that Macleod had likewise committed an intromission, by taking possession of an annuity from her first husband, Archibald Macqueen of Tote. According to John, Macleod had conveyed the annuity to Donald, and therefore it rightfully belonged to Donald’s heirs.
Jean Coalston, Pursuer v. Archibald Stewart, Merchant in Queensferry, Defender 3 Aug 1770 Bankruptcy, Debt The late George Stewart, merchant, who had filed for bankruptcy in London in 1749, owed money to Peter Coalston, the petitioner's brother, who had not participated in the bankruptcy arrangement. Later, Stewart started making money again and died, quite solvent, in 1758, with his bother Archibald as heir. Jean Coalston, as her brother's heir, sought to collect the debt. At the issue was the extraterritoriality of English law, in particular whether the laws of bankruptcy in England were applicable and valid in Scotland, as bankruptcy proceedings in Scotland were voluntary for creditors, whereas in England they were obligatory.
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.
Elizabeth and Isobel Grays, Daughters of John Gray of Rogart, deceased v. John Wood, and Others, Creditors of said John Gray 25 Feb 1773 Creditor, Estate Settlement Elizabeth and Isobel Gray, daughters of John Gray, inherited the lands of Rogart, which their mother Rachel Monro had received from her own father. After her marriage to John Gray, Monro transferred legal ownership of the lands to her husband, at which time he agreed to secure £200 in liferent for his spouse and their future children. No formal contract, however was ever executed to confirm this agreement. Nevertheless, Mr. Gray remained as manager or administrator for his daughters. Elizabeth and Isobel Gray sold the lands of Rogart. The Creditors of John Gray brought a multiple-poinding action against them in an attempt to claim a right to a portion of the proceeds in order to satisfy John Gray's debts. The Lords found that the lands did not belong to the Mr. Gray, thus Elizabeth and Isobel Gray could claim the whole value.
Agnes Watson v. Mary Rae 16 Jul 1773 Bonds This case was about the ability of minors, when choosing their own curators, to agree that those curators would not be liable for omissions (as opposed to active interference with the minors’ property). Greenock merchant James Watson, the father of pursuer Agnes Watson, died leaving three minor children. The children chose several curators to manage their affairs, including James’s business partner Robert Rae. The “act of curatory” that empowered these curators included a clause absolving them of liability for omissions. After the Watson children came of age, they sued the curators for mishandling the estate. The proceeding stretched over many years, and after the curators died, Agnes Watson continued the action against their representatives. One of these representatives was defender Mary Rae, daughter of Robert, who contested a number of Agnes’s claims. In particular, Mary argued that she could not be held responsible for the curators’ failure to collect certain debts, because the act of curatory shielded the curators from liability for omissions. In response, Agnes argued that minors could not elect curators subject to such a condition.
Maxwell v. M'Arthur 16 Dec 1775 Spouses James Macarthur and Jean Stevenson were incarcerated after being convicted of keeping a brothel. They submitted a bill of suspension that rested on two main grounds. First, they alleged that the judge who ordered them to be incarcerated lacked jurisdiction. Second, they alleged that their trial had been marred by procedural irregularities. The case documents include testimony from a number of individuals.
Glass v. Kelly, &c 26 Nov 1776 Vestita Viro James Rae left his wife and daughter, Agnes Kelly and Agnes Rae, a £40 owed by John Murray, junior. Kelly's second husband, William Duncan, being drowned in debt, renounced his right over his wife's effects. One of Duncan's debts was jointly shared with Bailie Andrew Glass, and held by David Loch. Loch obtained a decree from the High Court of Admiralty against the two, and Bailie Glass had Duncan imprisoned in the St. Andrews Tolbooth until he could pay his share of the debt. In order to free her husband from jail, Kelly and Rae endorsed the above-mentioned bill to Glass. Duncan then signed his furniture over to Rae as security. After paying Loch Duncan's share of the debt, Glass attempted to collect payment of Murray's bill, but was unable. He then raised an action before the Sheriff of Fife against Murray, Kelly, and Rae, charging the latter two with liability for the value of the bill. He argued that value was given to Kelly and Rae for the endorsement: the release of Duncan from prison, and the above-mentioned furniture. The Sheriff found Kelly and Rae liable, but Lord Covington and the Court determined that as a vestita viro (married woman), Kelly's endorsement of the bill was null and void.
Lieutenant-Colonel James St Clair v. Miss Jean Alexander of Rosebank 21 Nov 1776 Kirk This case was about whether the defender could claim an exclusive property right to a seat in a church. In 1728, the proprietor of an estate called Roslin transferred part of the estate to one Yaxly Davidson; the transferred land came to be known as Rosebank. The proprietor also gave Davidson access to certain seats in the local church, which had been reserved for the estate of Roslin. (The exact nature of this access, and the number of seats affected, were matters of dispute.) In time, Jean Alexander became the proprietor of Rosebank and began using the associated seats. She sought to exclude Roslin tenants from the seats, and Colonel James St. Clair, the contemporaneous proprietor of Roslin, sued. St. Clair claimed that he held the sole right to the disputed seats. In response, Alexander argued that the proprietors of Rosebank had acquired the seats by prescription—in other words, that by possessing the seats for a long period of time, they had obtained a property right. St. Clair argued that a church seat could not be obtained by prescription, and that in any case, Alexander had not enjoyed the sort of exclusive possession that was necessary for prescription to apply.
Agnes Watson, and James Taylor, her Husband v. Agnes Mathie, and James Weir, her Husband 14 Nov 1776 Debts to estate, Tutors and Curators Greenock merchant James Watson, the father of pursuer Agnes Watson, died leaving three minor children. The children chose several curators to manage their affairs, including two of James’s business partners, Robert Rae and Gabriel Mathie. Robert Rae took on primary responsibility for the curatorship. After the Watson children came of age, they sued the curators for mishandling the estate. The proceeding stretched over many years, and after the curators died, Agnes Watson continued the action against their representatives; one such representative was defender Agnes Mathie, daughter of Gabriel. Agnes Mathie initially failed to participate in the case, but after being held liable in a sheriff’s judgment, she raised several defenses. First, Mathie claimed that the pursuers had orally renounced any claims against her father. Second, Mathie argued that certain sums were received by Robert Rae without the authority of a quorum, and that the other curators should not be held responsible. Finally, Mathie argued that Rae had received certain payments in his private capacity as manager of a mercantile venture with James Watson. According to Mathie, Rae had good credit, so there was no reason to punish the other curators for failing to collect what he owed to Watson. In response, Agnes Watson argued that the curators were liable for failing to exercise diligence in collecting open debts.
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.
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.
Creditors of Angus Fisher v. The Creditors of Patrick Campbell, and Others 18 Dec 1778 Bonds Angus Fisher, merchant of Inveraray, borrowed some £600 sterling from the Old Ayr Bank. Captain James Campbell, Patrick Campbell of Knap, Gillies of Duchra, and Ochiltree of Lindsaig served as joint-cautioners. At the same time Angus Fisher had other outstanding debts, including one held by Mrs. Sarah Ranken. Both Captain Campbell and Mrs. Ranken were granted heritable bonds of relief over the lands of Auchindrain for payment and security. In December 1771, the Old Ayr Bank demanded repayment. Angus Fisher had died insolvent, as had Gillies of Duchra. Campbell of Knap, Ochiltree, and their creditors, gave Captain Campbell £230 each, and he then reimbursed the bank in full. All the joint-cautioners had arranged that the heritable bond held by Captain Campbell would be used to reimburse all cautioners and their creditors. Mrs. Sarah Ranken and other creditors of Angus Fisher objected to this arrangement, claiming that the income from the property should instead be used to pay other creditors who held heritable bonds against Auchindrain. In 1778 Lord Hailes pronounced that Captain Campbell's co-cautioners were indeed entitled to a residuary security from the property. Ranken and other creditors of Fisher then petitioned the Court, arguing that the heritable bond was held personally by Captain Campbell and could not be used to reimburse the other co-cautioners. The Court repelled her objection.
Dame Robina Pollock, Spouse to Sir Hugh Crawford, and Sir Hugh, for his Interest v. Mary Porterfield, Widow of John Lockhart of Lee 10 Mar 1779 Jurisdiction, Female Succession, England In 1708, an Act of Parliament was passed enabling Dorothy Luckyn and James Lockhart to sell some lands the former had inherited. Upon their deaths the money from the sale was held in trust on behalf of their young heir, John Lockhart. Rather than petition the Court of Chancery to remove the tailzie from the trust, Lockhart's trustee, Robina Lockhart, removed the money to Scotland and conveyed it to her pupil upon his coming of age. When John Lockhart died a number of decades later his unentailed estate passed to his wife, Mary. John Lockhart's niece and her husband then brought action against Mary Lockhart and other trust-disponees, claiming the above-mentioned money as heirs of entail. They argued that the money in question still remained entailed under English law. The defenders, on the other hand, argued that the trust-money, having been removed to Scotland and conveyed to Lockhart, was therefore a sum of money belonging to him. Furthermore, they argued that even if there had originally been a case against the trustee's actions, it was no longer viable due to the negative prescription. To support this second argument, the defenders cited the Court's decision on Boyd Porterfield of Porterfield v. Joanna, Margaret, and Lilias Porterfields. The Court of Session determined that the negative prescription had cut out the claim of the substitute heirs, and the House of Lords upheld this decision.
Sibbald v. Mr William Wallace 27 Jul 1779 Foreign Merchant, Non-implement In June 1774, John Sibbald, a self-styled 'merchant in Gottenburg', brought action against William Wallace, advocate, with respect to two letters of guarantee Wallace had granted on behalf of Betty Irvine, an Edinburgh merchant and shopkeeper. In November 1772, Irvine had passed this surety to Sibbald in exchange for a bill of landing for four boxes of tea, which were ultimately seized and condemned by the Crown upon entering the Firth of Forth. On account of this failed adventure and the execution raised against her by the pursuer, Betty Irvine became bankrupt and left the country. Sibbald then pursued Wallace for the £80 pounds. The case came before the Lord Justice Clerk. Barskimming found the defender liable at first but later assoilzied him, and Sibbald petitioned the Court to alter this interlocutor. He argued that the conveyance in question was one that had occurred in Gottenburg, and as a foreign merchant his case was actionable. The defender argued that Sibbald was merely disguised as a foreign merchant, but he was truly a burgess of Kinghorn. Therefore, Wallace stated, "The point in the dispute, is, whether ought action to be sustained, upon a confessed smuggling contract, or rather upon a contract for doing an act prohibited by the public law, at the instance of one of the parties." He also argued his case based upon the principle of non-implement, for the transaction he had referred to in his letter of surety was different from what had occurred. The Court found in favor of the pursuer at first, but upon advising a second petition and answers, assoilzied (absolved) the defender.
John and Ursula Smith v. James Marshall 21 Jul 1780 Disposition Upon the sale of Drongan to Mungo Smith in 1765, the children of the late John Smith and Ursula Hamilton had right to one eleventh of the price. Their uncles and tutors, Thomas Hamilton of Overtoun and John Hamilton of Dowan, lodged this sum in Virginia with their firm John Hamilton and Company. In 1775 this money was lost when the firm's assets were locked up, and the Smith siblings brought action against John Hamilton of Dowan; Archibald Hamilton, the son of the late Thomas Hamilton of Overtoun; and the children of the late John Marshall, for recovery of this sum. John Marshall had served as cautioner to the 1763 bond for Drongan granted by the Hamiltons to their pupils. He died in 1774, having conveyed the bulk of his subjects to his younger children, William and Jean, although his eldest son, James, held the general disposition. The action came before Lord Braxfield, who repelled James Marshall's defenses but then reported the case. In December of 1779 the Court ruled that James Marshall was liable to the pursuers for the debt, but only in proportion with the other onerous debts of his father. Upon receiving a petition and answers, the Court ruled again in July of 1780, adhering to their previous interlocutor.
Ramage v. Charteris 19 Jul 1782 Mrs. Jean Charteris, a Scottish merchant, was engaged in trade with Joseph Ramage, a merchant in York. Ramage furnished articles of thread manufacture to Charteris, and Charteris paid him either in cash or in goods. In 1780, Ramage raised an action against Charteris for a balance that was allegedly due on her account. The account showed that Ramage had last furnished an article to Charteris in 1776, but Charteris had furnished goods to Ramage within the last three years. Charteris argued that the case was barred by the triennial prescription (i.e., the statute of limitations). Ramage responded that the prescription would not become effective until three years passed with no furnishing by either party.
Ranking of the Creditors of Jarvieston 24 Jun 1782 This case was about whether creditors could be ranked for the penalties specified in heritably secured bonds. The affected creditors argued that they should be ranked for the penalties to the extent of their actual expenses. They further argued that the court had previously used its equitable powers to limit recovery with respect to penalty provisions, but not foreclosed recovery altogether. The respondents contended that creditors could never be ranked for penalties.
Buchannans v. Gray and Hall 3 Aug 1782 Alexander and Jean Buchanan initiated a ranking and sale of land that had belonged to Robert Hall of Fulbar. The land was possessed by John Farquhar-Gray of Kilmardinny and Jean Hall, each of whom claimed to have a heritable security on the property. The Buchanans objected to these securities and raised a second process against Farquhar-Gray and Hall to challenge their claims. While the proceedings were pending, the Buchanans petitioned the court to sequestrate the land in question. Farquhar-Gray and Hall argued that it would be improper to sequestrate land that was already in their possession, and that the parties’ rights should be determined in the other proceedings.
George-Alexander Gordon v. Janet Gordon 21 Dec 1784 This case involved a dispute between women who sought to inherit property as heirs of line and another relative who sought to inherit under an entail. Near the end of his life, Bailie Charles Gordon executed an entail granting the lands of Pitlurg and Achorties to his son Alexander or, in the alternative, to a series of substitutes. Alexander inherited the property, but rather than claiming it as heir of entail, he took the lands under a precept of clare constat (a type of deed). Alexander also obtained a decree voiding the entail on the ground that it was completed on deathbed. Alexander held the property for more than 40 years, the length of the statutory prescription (limitations) period. When Alexander died in 1783, his sister Janet Gordon and niece Magdalene Grant claimed the property as heirs of line. Another relative, George-Alexander Gordon, claimed under the entail. Janet and Magdalene defended their claim with two arguments: (1) the entail was void; and (2) Alexander had defeated the entail by possessing the property for more than 40 years under an unlimited title. George-Alexander argued that the prescription period had been interrupted because he was a minor when he became the immediate substitute. He also challenged the decree voiding the entail.
Isabel Howison v. John Howison 7 Dec 1784 Three men granted a bill to Stephen Howison, the late father of pursuer Isobel Howison. Additionally, John Howison of Hyndford, defender, wrote Stephen a letter promising that the bill would be paid. Later, Isobel sued John for payment. In response, John argued that the action was barred by a six-year limitation on bills and a seven-year limitation on liability for cautioners.
John Adair v. Robina and Jean Adairs 24 Jan 1787 Documents available. Full description in progress.
The Younger Children of Lauchlan Mactavish v. His Creditors 15 Nov 1787 Documents available. Full description in progress.
Rebecca Hog v. Thomas Hog 7 Jun 1791 Documents available. Full description in progress.