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Family - From: 1200 To: 1799

This page lists 62 cases, and was prepared on 02 April 2018.

 
Case XCI 11 H 6, 32 7 Co 1, Calvin's Case 11 E 3 Fitz Br 473 24 E 3, 65 Roigne [1220] EngR 82; (1220-1623) Jenk 69; (1220) 145 ER 70 (A)
1220


Family, Constitutional
Katherine Queen of England, after the death of K. H, 5 married Owen Tudor knight, descended from the royal stem of the pririces of Wales, by whom she had two sons and a claughter ; during their marriage she sued without her husband by the name of Queen of Eriglarid (She was the daughter of (Charles, King of France.)
Resolved by all the judges, that though a Queen marries a private man, she remains Queen, and a person exempt to sue, or be sued as a feme sole ; and that she is a person capable to purchuse land without her husband, with a power to dispose of it.
A private statute was made the 6 H. 6 that it shoukl not be lawful for a Queen Dowager to marry any persori without the King's licence.
[ Commonlii ]

 
 14 Jac Cr 417 Saunders v Esterby, Hob 216, v Collateral Assumpsit, Collateral Promises Must Be Put In Writing By 29 C 2, Cap 3; 1220 - [1220] EngR 167; (1220-1623) Jenk 336; (1220) 145 ER 244 (D)
 
CASE II 4 H 3, Dower, Fitz 179 Stamf Praer Ch 12 [1220] EngR 492; (1220-1623) Jenk 3; (1220) 145 ER 3
1220


Family
An English woman residing in France at the time of war between the two nations shall not have her dower in England of her English husband's land until the countries are common, that is, until there be peace between them ; for she is under the power of the King of France ; and if she should have her dower while she resides there, it, would tend to weaken the King of England. After peace between them, she shall have her dower.
[ Commonlii ]
 
A v B [1534] Mor 16219
10 Jul 1534
SCS

Scotland, Wills and Probate, Family
Ane bastard deceissand, and leivand behind him bairnis Iauchfullie gottin of his bodie, beand of les age and pupillis, without ony tutor testamentar, left be thair father to thame, in his testament or latter will, the King may give to thame ane tutor, because thay cannot have ony agnat or kinnisman of the fatheris side.
[ Bailii ]

 
 Janet Auchinlech v James Stewart; SCS 18-Dec-1540 - [1540] Mor 339
 
Sir William Hamilton v John Wallace of Craigie [1561] Mor 8178
23 Feb 1561
SCS

Family
Gif ony man havand ane lauchful wife, and in like manner lauchful bairns gottin of his bodie, the quhilkis bairnis ar all forisfamiliat befoir his deceis, all his movabill gudis and geir pertenand to him the time of his deceis, sould be dividit equallie in twa partis, viz. the deidis part, and the wife's part; because the bairnis, beand forisfamiliat, sould have na part nor portioun thairof.
[ Bailii ]

 
 Barbara Logan v Roger Wod; SCS 26-Mar-1561 - [1561] Mor 339
 
Barbara Logan v Roger Wood [1561] Mor 5877
26 Mar 1561
SCS

Family
Husband bound to aliment and provide for his Wife.
[ Bailii ]
 
Robeson v Jackson [1562] Mor 6166
30 Jan 1562
SCS

Family
Rights flowing from third parties in contemplation of the marriage.
[ Bailii ]
 
Bryson v Somervill [1565] Mor 1703
17 Nov 1565
SCS

Scotland, Crime, Family
Anent the action pursued by Janet Bryson against Janet Somervill, and William Sharer, her son, for a spulzie committed by umquhil David Sharer, her husband, and herself, and their son being in company with them; it was alleged for the said William, That in time of the said spulzie committed by his father and mother, he was within the age of twelve years, and but alleged to be in company with his said father; and so not being doli capax, et in patria potestate, non potuit contrahere obligationem.-It was alleged by the said pursuer, that the said William was past ten years, and therefore might be called for the said spulzie, because he was doli capax, quia in proxima erat pubertati et malitia potuit supplere aetatem; neither the woman nor he could be excused, by the man being father to the boy, and husband, quia omnes in pari delicto parem paenam sustineant, et cum hisce actio ex maleficio orietur, omnes tenebat.-It was alleged by the said William, because the said pursuer alleged him to be of ten years and not fourteen, therefore he should be assoilzied: Whilk allegeance of the said pursuer was repelled; and the allegeance of the said defender admitted; and the said defender assoilzied frae the spulzie, for the causes foresaid.-It was alleged by the said Janet Somervill, That she should be assoilzied frae the said spulzie, because it was alleged in the pursuer's libel, that umquhil David Sharer her husband, and she in company with him, committed the said spulzie; so on noways should she be called after his decease, she neither being called after as heir, or executrix to him, but allenarly upon her own deed, done in company with her own husband in his time, he being her principal head: Which allegeance of the said Janet, defender, was admitted, and she affoilzied frae the said spulzie. The like was practiced before, in my Lady Crawfurd's case, who being pursued for the spulzie of, was absolved, because her husband was there; and my Lady Ratie, pursued by ane Bruce, was absolved for the samen reason. See Husband and Wife.
[ Bailii ]

 
 The Countess of Argyle v Tenants of Dollar, and The Earl of Argyle; SCS 19-Dec-1573 - [1573] Mor 327

 
 Murray and Tenants v Livingston; SCS 16-Jun-1575 - [1575] Mor 328

 
 Livingston v Murray, The Same Parties; SCS 9-Jul-1576 - [1576] Mor 328

 
 Lady Baquhanan v The Laird; SCS 16-May-1579 - [1579] Mor 329

 
 L Innerwick v The Lady; SCS 1-Mar-1589 - [1589] Mor 329

 
 Lady Tyrrell's Case; 1660 - [1660] EngR 174; (1660-1706) 1 Freem Chy 304; (1660) 22 ER 1225 (D)
 
Manby v Scott (1663) 1 Mod 124
1663


Family
Since a husband owed it to the community to sustain himself, he was under the inevitable compulsion to sustain his other self, his wife, who was "bone of his bone, flesh of his flesh, and no man did ever hate his own flesh so far as not to preserve it." The marriage and its incidents were exclusively within the jurisdiction of the Ecclesiastical Courts, so that for the common law to have entertained a claim for maintenance by the wife against her husband would have amounted to an invasion of the spiritual jurisdiction. A wife could neither claim nor enforce any right to maintenance in the civil courts.
1 Citers


 
Harmer v Brooke [1673] EngR 44; (1673-74) 2 Rep Ch 92; (1673) 21 ER 625 (B)
1673


Family
Execution of marriage agreement
[ Commonlii ]
 
Francis Harmore and Elizabeth His Wife v Doble Brook, Birkenhead Collins, John Hamlin, Tho Hamlin An Infant, By The Said John His Guardian, And George Banister [1674] EngR 26; (1674) Fin H 183; (1674) 23 ER 101 (A)
1674


Trusts, Family
Articles in Marriage to pay 500 pounds with his Daughter by such a ime, and to secure to her all his real and Personal estate when he died; and afterwards he devised all his personal Estate to another, which being contrary to the Articles, that Agreement was deemed to be performed.
[ Commonlii ]
 
Edwards and Mary His Wife and others v Allen And Katharine, Webb amd Katharine His Wife, Webb An Infant [1675] EngR 602; (1675) Fin H 214; (1675) 23 ER 118
1675


Family

[ Commonlii ]

 
 -- and Wilmore; 1675 - [1675] EngR 45; (1675) 1 Rolle 400; (1675) 81 ER 564 (A)
 
Smith and Wife, Hester, Ashton, Daughters of Ralph, And Infants, By Their Guardian v Beatrix Ashton Widow of Richard Ashton [1676] EngR 155; (1676) Fin H 273; (1676) 23 ER 150
1676


Family, Trusts, Land

[ Commonlii ]
 
Taylor v Rudd [1677] EngR 85; (1677) 2 Chan Cas 241; (1677) 22 ER 926 (B)
5 Feb 1677


Family
The Defendant, four Days after her Husband’s Death, was asked by the Plaintiff, whether she would marry again : and he gave her a Guinea to have ten Guineas for it if she married again. And now she being married, the Plaintiff sued her and her Husband to discover the Promise.
[ Commonlii ]
 
Elizabeth Ironmonger Widow v John Ironmonger Gent [1678] EngR 29; (1678) Fin H 374; (1678) 23 ER 205 (A)
1678


Family

[ Commonlii ]
 
Vermuden v Read [1682] EngR 419; (1682) 1 Vern 68; (1682) 23 ER 316
1682


Family

[ Commonlii ]
 
Vermuden v Read [1683] EngR 34; (1683) 1 Vern 167; (1683) 23 ER 391 (B)
1683


Family

[ Commonlii ]
 
Duke of Hamilton and Uxor v Lord Mohun [1710] EngR 10; (1710) 1 P Wms 118; (1710) 24 ER 319
1710


Family, Contract
Husband before marriage covenants to release his wife's guardian of all accounts, not binding.
[ Commonlii ]
 
Linguen v Souray [1715] EngR 26; (1715) Prec Ch 400; (1715) 24 ER 179
1715


Family

[ Commonlii ]
 
David Gregory of Kinnairdy v James Anderson Grazier In Aberdeen [1716] UKHL Robertson_178; (1716) Robertson 178
24 Jun 1716
HL

Family, Wills and Probate, Scotland
Donatio inter virumet Uxorem - During the subsistence of a marriage a wife and her sister, who have an equal right to a bond, convey the same to the husband. He afterwards makes his will, appointing his wife executrix and universal legatee, for behoof of the grandchildren. After the death of the husband, the grant formerly made by her to him was not revocable as a donatio inter virum et uxorem.
Prescription - The prescription of 40 years not to be counted, from the date of an assignment of a bond, but from the time of receiving the money thereon.
Onerous cause - An assignment of a bond, bearing to be for onerous cause, from the circumstances of parties as executrix and trustee, found not to prove the onerous cause of the assignment in a question near 50 years from the date thereof.
Trust - A discharge granted by an executrix to a manager for her under a will, who had a salary, or all his receipts and intromissions, in general terms, was not sufficient to discharge him from the intromission with a bond, which the deceased disponed to the widow, his executrix, for the good of his grand-children.
[ Bailii ]
 
Edward Draycott v Draycott Talbot, And Others [1718] EngR 68; (1718) 3 Bro PC 564; (1718) 1 ER 1501
28 Jan 1718
PC

Evidence, Family
The entry of the name and titles of persons in a church book, either for marriages or births, cannot be positive evidence of the marriage or birth of any person ; unless the identity of the person named in such entries is fully proved, and strengthened also with circumstances of co-habitation, or the allowance of parties.
[ Commonlii ]
 
William Morison, of Preston Grange, Esq; v Sir William Scott of Thirlestayn, William Nisbet of Dirleton, and John Scott of Harden, A Minor, By His Guardian [1720] UKHL Robertson_269; (1720) Robertson 269
19 Feb 1720
HL

Family, Trusts
Husband and Wife - A bond, with a clause of annualrent is granted blank in the creditor's name, but delivered to a wife, during the subsistence of her marriage: the husband entails his real estate on the grantor of the bond, and also conveys to him all his personal estate, but was not privy to said bond; in a competition between the executor of the husband, and the executor of the wife, the husband's executor is preferred to said bond: and the wife's executor is ordered to refund what had been paid to her, in her widowhood.
General Disposition - A general disposition of a man's personal estate, made in favour of one who had, without the husband's knowledge, granted a bond to the wife did not release this bond.
[ Bailii ]
 
John Allardice, Merchant In Campvere v Jane Smart, Widow and Executrix of The 'S Father, for Herself and Her Children [1722] UKHL Robertson_399; (1722) Robertson 399
12 Feb 1722
HL

Scotland, Family
Provisions to Heirs and Children - A special provision, in a marriage contract, of sums of money to be laid out on land or other good security, and also of conquest in lands, heritages, fishings, sums of money and others, to the heirs of the marriage, went to all the children, and not to the eldest son only.
A discharge of provisions granted by two children to their father, in consideration of a certain sum of money, paid to them, operated in his favour with regard to the remainder of their provisions, and not in favour of another child, who did not discharge.
Fiar - A house, part of the conquest of a first marriage, is disponed to a person and his wife in conjunct fee and life-rent, and to the bairns of the marriage in fee, whom sailing, to the heirs of the husband: the husband being fiar might settle the life-rent thereof on a second wife.
[ Bailii ]
 
Charlotte Marchioness Dowager of Annandale v James Marquis of Annandale [1722] UKHL Robertson_411; (1722) Robertson 411
15 Dec 1722
HL

Scotland, Family
Provisions to heirs and children - Husband and wife - In a contract of marriage with a first wife, a person obliges himself to settle his estate on the heirs of the marriage; by a procuratory of resignation, executed in same terms, he reserved power to grant provisions to a second wife and younger children, on which infeftment followed; and by another deed he afterwards restricted his right of granting provisions to second wife, and children, to the extent of 100,000 l. Scots; After a second marriage, he grants a bond to a second wife for an annuity or jointure of 1000 l. sterling: but made no provisions for children of the second marriage. This second wife in a question with the heir of the first marriage, is declared to have the right to her jointure, till she drew thereout the sum of 100,000 l. Scots.
Registration - A deed restricting an unlimited power of granting provisions to a second wife and younger children, which unlimited power was contained in infeftments upon record, is found valid, though not registered, in a question between the heir and a second wife.
[ Bailii ]

 
 Rex v Curnock; 1724 - [1724] EngR 490; (1724) Comb 418; (1724) 90 ER 565 (A)
 
Dame Margaret Houston, Widow of Sir John Houston, Bart, Assignee and Executrix of Dame Helenor Schaw, The Mother of The and v Sir John Schaw, Bart [1726] UKHL Robertson_561; (1726) Robertson 561
20 Apr 1726
HL

Family
Proving the Tenor - Presumption - Mutual Obligation - In an action by a mother against a son for proving the tenor of a deed executed by her during her husband's life, it is found that the pursuer's having the disposition cancelled in her hands, and never ratifying the same judicially, presumed that it was cancelled by herself.
This cancelling dissolved the obligations of a bond, granted by her husband in consideration of said disposition.
In regard the pursuer's counsel did not deny that the cancelled deed was in her hands, and refused to give their oaths of calumny thereon, the defender is assoilzied.
[ Bailii ]
 
Legg v Goldwire [1736] EngR 81; (1736) Cas T Talbot 20; (1736) 25 ER 637
10 Nov 1736

Talbot LC
Equity, Trusts, Family
By Lord Chancellor Talbot - Where articles are entered into before marriage, and a settlement is made after marriage different from those articles (as if by articles the estate was to be in strict settlement, and by the settlement the husband is made tenant in tail whereby he hath it in his power to bar the issue), this Court will set up the articles against the settlement; but where both articles and settlement are previous to the marriage, at a time when all parties are at liberty, the settlement differing from the articles will be taken as a new agreement between them and shall control the articles. And although, in the case of West v Errissey . . afterwards in the House of Lords, in 1727, the articles were made to control the settlement made before marriage, yet that resolution no way contradicts the general rule; for in that case the settlement was expressly mentioned to be made in pursuance and performance of the said marriage articles, whereby the intent appeared to be still the same as it was at the making of the articles.
[ Commonlii ]
 
Jean Burden, Widow of James Kinross v David Smith [1738] UKHL 1_Paton_214; (1738) 1 Paton 214
27 Apr 1738
HL

Scotland, Family
Mutual Contract - Succession - A provision in a marriage contract of certain sums in favour of the wife, failing children, or in the event of their deaths in minority and unmarried,
[ Bailii ]
 
Janet Stedman, Wife of James Stedman of Kinross v James Stedman of Kinross [1742] UKHL 6_Paton_675
6 Feb 1742
HL

Scotland, Family
HL Divorce - Remissio Injuriae. -
Though a husband, who raises an action of divorce against his wife, on the ground of adultery, does not withdraw himself from his house, where his wife chooses to remain, after the summons is served on her, but eats and sleeps separately, under the same roof, he is not held to cohabit with, or to be reconciled to her, so as to raise the plea of remissio injuri as a bar to the action; and, therefore, that plea was, in this case, repelled.
[ Bailii ]

 
 Middlecome v Marlow; 28-Feb-1742 - [1742] EngR 33; (1742) 2 Atk 519; (1742) 26 ER 712
 
Grigby v Cox (1750) 1 Ves Sen 517
1750

Lord Hardwicke
Family, Undue Influence
The court considered a claim that the husband had exercised undue influence over his wife. Held: The court rejected any presumption of undue influence, and said that a court of equity "will have more jealousy" over dispositions by a wife to a husband.
1 Citers


 
Countess of Strathmore v George Forbes, Sometime Factor and Steward To The Said Countess, and Susan-Janet-Emilia Forbes, An Infant, Lawful Daughter of The Said George Forbes, By The Said Countess, His Wife [1751] UKHL 6_Paton_684
20 Mar 1751
HL

Scotland, Family
Marriage - Cohabitation - Proof. -
A declarator of marriage and legitimation was brought by the respondent, Forbes, founding upon marriage celebrated and performed in Scotland, by some clergyman unknown; and founding, also, on cohabitation in Scotland, and also cohabitation as man and wife in Holland. Held him entitled to a proof of the marriage, and also of the cohabitation as man and wife in Scotland, but not of the cohabitation in Holland. On advocation of this judgment of the Commissaries, the Court remitted to them to allow a proof of the marriage in Scotland, and of the cohabitation in Holland, as an incident of that marriage. On appeal to the House of Lords, appeal withdrawn, of consent, and interlocutors affirmed.
[ Bailii ]
 
George Montgomery-Moir, Esq of Leckie v Anne, His Wife, and Others [1751] UKHL 6_Paton_687
24 Apr 1751
HL

Scotland, Family
Separation and Aliment - Cruelty. -
The respondent raised an action of separation and aliment against her husband, the appellant, on the ground of cruelty and a calumny published by him against her honour and reputation. It was objected, that there was no relevant statement to support the action. The Commissaries allowed a proof of the libel. On advocation the Court refused the bill, but remitted, with instructions to the Commissaries, to allow a proof only of such facts as appeared material, and of the publication alleged. Proof of the calumnies on the part of the husband was allowed. The Commissaries found facts and circumstances proved relevant to infer separation. On bill of advocation the Court refused the bill, and remitted to the Commissaries. In the House of Lords reversed, and held the evidence not sufficient to support the conclusions for separation and aliment.
[ Bailii ]
 
Mrs Magdalen Cochrane, Alias Kennedy v Mrs Jean Campbell, and Jean Her Daughter [1753] UKHL 1_Paton_519
31 Jan 1753
HL

Family
Husband and Wife.-
A man having been married privately to A, and lived with her as his wife in public for twenty years, and procreated several children; B after his death alleged a previous clandestine marriage with him. Mutual declarators were raised, and strong circumstances adduced by B to establish the first marriage; yet as she had entirely concealed her pretended marriage during her husband's lifetime, and had several times been in company with him and A together, and owned her as his wife, it was found that she had not proved her prior marriage.
[ Bailii ]
 
His Majesty's Advocate v Mary Drummond, Only Daughter of The Marriage Between James, Lord Drummond and Lady Jane Gordon [1753] UKHL 6_Paton_692; (1753) 6 Paton 692
3 Apr 1753
HL

Scotland, Family
Provision to Heirs and Children - Ante-Nuptial Contract - Implied Condition. -
By an ante-nuptial contract, provision was made for daughters, if one, of 40,000 merks, if two, 50,000 &c., payable at their respective ages of eighteen, or on marriage, providing that these should be in full of all they could claim as natural portion, or bairns' part of gear, which they, or either of them, as heir, or heirs of line, or at law, might claim. The respondent was the only daughter, and she claimed the 40,000 merks when eighteen years of age; but it was objected that this clause supposed that the daughters were only to be paid the provision upon failure of issue male of the marriage, and, therefore, that it was conditional. Held her entitled to her provision. Reversed in the House of Lords.
[ Bailii ]
 
Alexander Ramsay Irvine v Alexander Irvine, By His Guardians [1753] UKHL 1_Paton_547; (1753) 1 Paton 547
10 Dec 1753
HL

Scotland, Family
hl Marriage Articles, Fraud - Proof.-
(1) Reduction of marriage articles on the head of imbecility and fraud, sustained by the Court of Session, in respect of the suspicious and unequal nature of the whole transaction, but reversed in the House of Lords, in respect the marriage had followed thereon, and that fraud or imbecility was not proved. (2) The lady's mother was offered as a witness, but objected to on the ground of malice against the appellant. Objection repelled, and proof of reprobators refused. (3) The physician who attended the lady's father, and who was charged with having availed himself of the opportunities which his attendance afforded, to induce the marriage settlement, rejected as a witness in support of the deed.
[ Bailii ]
 
Lady Dowager Forbes v Lord James Forbes [1765] UKHL 2_Paton_84
29 Jan 1765
HL

Family, Trusts
Reduction - Error in Essentials of Agreement - Lifkrenter's Powers and Liabilities - Bona Fide Consumption.-
Where the husband and wife, by marriage articles, conveyed the estate to themselves, and the survivor of them, for the wife's liferent use allenarly, reserving power to grant provision to daughters to the extent of £3000, and failing the husband exercising this power to the wife: Held, (1 st,) That though the husband had granted provisions to his daughters in exercise of this faculty, to the extent only of £2000, that the wife was entitled, after his death, to execute an additional bond to the extent of £1000. (2 nd), That where the liferentrix had entered into agreements restricting her liferent rights, through error in essentials, that she was still entitled to claim her rights as originally settled. (3 d), That bona fide percepti et consumpti was not pleadable, and the respondent accountable, for the whole rents, feuduties, and casualties since the date when her right accrued, reversing the judgment of the Court of Session: But, (4 th), That she was liable for the interest of the heritable debts on Puttachie and Pittendriech.
[ Bailii ]
 
William Dallas v James Dallas [1765] UKHL 2_Paton_91; (1765) 2 Paton 91
4 Feb 1765
HL

Scotland, Family
Ratification - Reduction - Facility - Marriage Contract - Father's Powers - Provisions to Children - Second Marriage.-
A father, in his son's contract of marriage, conveyed his estate to his son and his intended wife in liferent, and the heir male of that marriage in fee. The son thereafter executed an entail of the estate to George, his eldest son, and heir male of the marriage, and a series of other heirs substitutes, reserving power to burden and alter. After his wife's death, he married a second time, and provided in the marriage settlement for the issue of the second marriage out of separate estate. He thereafter executed additional provisions in favour of the children of the second marriage, and burdened also the estate conveyed to the heir male of the first marriage, as well as granted a lease of the same for 40 years. The heir male of the first marriage was facile, and had been prevailed on to ratify the entail, and these subsequent deeds of provision. Held, that his son was not barred by his father's deeds of ratification from challenging the entail and provisions charged on the estate in favour of the second marriage; these ratifications having been obtained from a weak and facile person.
[ Bailii ]
 
Blair and Others v Sir William Moncrieff, Bart [1766] UKHL 2_Paton_126; (1766) 2 Paton 126
5 Jan 1766
HL

Family, Scotland
Contravention of Marriage Contract - Service - Minority - Passive Title - Ratification.- 1. Held that the heir of the marriage is entitled to reduce a deed executed in fraud of the marriage contract, without expeding a general service; 2. Held such heir is entitled to set aside a general service expede in his name in minority, to his hurt and prejudice, in so far as it made him universally liable for his father's debts; 3. Also held, that as his ancestor died in apparency in regard to Moncrieff estate, he was entitled to pass him over and serve heir to his grandfather, without being liable for the debts; and as to the other provision, or estate of £5555. 11s. 1d., and 100,000 merks, he was not liable passive, he not having taken benefit from that estate, and that a sum of £2500 received to ratify these did not make him liable passive.
[ Bailii ]
 
James Arthur v Janet Gourlay [1769] UKHL 2_Paton_184
9 Mar 1769
HL

Family
Separate Aliment.-
Where the husband offers to aliment the wife in his own house, but takes lodgings only for her, and does not eat, sleep, or stay in the same house with her. Held, that this is not adherence sufficient to exempt him from liability in a separate alimony.
[ Bailii ]
 
James Fairie v James Watson [1770] UKHL 2_Paton_213
19 Feb 1770
HL

Family
Conquest - Approbate and Reprobate.-
In a marriage contract, the husband had conveyed the whole lands and heritages that he might conquest or acquire during the marriage, one half to themselves in conjunct fee and liferent, and to the children of the marriage in fee; whom failing, to his wife's own nearest heirs. And in case of his dying without children, and his wife surviving him, then in that case disponing to her 100 merks, in full of all she, or her next of kin could claim: Held, in an action by her next of kin, for one half of the conquest after her death, that she could not approbate and reprobate the same deed by accepting the 100 merks, and also claiming the conquest; and that the house purchased during the marriage was not conquest, it appearing to have been purchased with funds at his disposal at the commencement of the marriage, and not with funds acquired by him subsequent thereto, and during the subsistence thereof.
[ Bailii ]
 
Jean Murray, Otherwise Carlyle, of Locharthur, and Husband v George Carlyle, Son of The Deceased Thomas Carlyle, In Travala, In Wales [1770] UKHL 6_Paton_779a; (1770) 6 Paton 779a
21 Feb 1770
HL

Family
Deed - Construction - Conditions. -
A marriage-contract, although absurd, and inconsistent in some of its clauses, yet, as it was clear in the destination clause, it was sustained.
[ Bailii ]

 
 The Duchess of Kingston's Case; 1-Apr-1776 - [1776] EngR 16; (1776) 1 Leach 146; (1776) 168 ER 175; [1775] EngR 54; (1775) Amb 756; (1775) 27 ER 487; (1776) 2 Smith's LC, 13th ed 644
 
Alexander Robertson, Merchant In Portsoy v Helen Inglis, Daughter of John Inglis [1787] UKHL 3 - Paton - 53
14 Feb 1787
HL

Family
Marriage by Cohabitation and Acknowledgment. - Circumstances in which the marriage was held complete.
This was a declarator of marriage and adherence, brought by the respondent, Helen Inglis, against the appellant, Alexander Robertson, setting forth that he, Robertson, had in 1769, made his addresses to her,-that he had urged her to be his wife, which, after some solicitation, she agreed to, and soon thereafter he fitted up a house for her,-that she, the pursuer, thereafter became desirous of being formally married by a clergyman, but he told her that this was not necessary, and that they were really man and wife, and that the ceremony would only give publicity to a thing which he wished concealed from his father and mother. That, in order to satisfy her, he wrote out and delivered to her a contract of marriage, which he afterwards abstracted from her repositories,-that, in virtue of these solicitations, and on the faith of these assurances, they cohabited together, and lived and resided in the house above mentioned as man and wife, from the year 1769 to 1783, during which time he behaved himself to her in all respects as a husband would do to his wife, by providing the necessaries of life, and by owning and acknowledging her as such; and she was owned and acknowledged as his wife, by the minister of the parish where he resided, and by the whole neighbourhood. That by the ten letters produced, he acknowledges her as his dear wife, and subscribed himself her affectionate and loving husband. The action was thus founded on three grounds, 1. Promise with subsequent copula. 2. Habit and repute; and, 3. Acknowledgment of marriage. In addition to these facts, the house in which they lived had been bought on her account. She was originally a servant, but, preparatory to marriage, he sent her to board, and for her education. On that event, he had given her an annuity of andpound;50 per annum, in case of his predecease. When latterly he fell off in 1783, and proposed marriage to another female, Miss Brown, and this marriage was to be celebrated by a clergyman, none of the clergymen about the place would perform the ceremony, so public was the repute of their being man and wife; and Miss Brown and he had to get married by acknowledging, and going to bed before two witnesses, taking protest in the hands of a notary. In defence, the marriage was denied, and on proof being allowed, and taken on the import of the proof, the appellant contended that she had failed in establishing any of the three grounds of her action.
[ Bailii ]
 
Agnes Kello v Patrick Taylor [1787] UKHL 3 - Paton - 56
16 Feb 1787
HL

Family
Marriage - Constitution of Do. - Circumstances in which a written acknowledgment of each other as husband and wife, not seriously gone into on the part of the female, but immediately repented of, did not constitute marriage.
At the annual market fair of Skirling, the appellant, Agnes Kello, who was the only daughter of a farmer in Skirling-Miln, became acquainted with the respondent Taylor, who had been a farmer in Birkenshaw. Taylor followed up this accidental meeting, by paying his addresses to her at her mother's house; he made an impression on her. But her parents inquiring more particularly into his character, were not satisfied. Their daughter was possessed of andpound;2000, and her suitor was on the eve of a second bankruptcy. After eighteen months unsuccessfully soliciting her in marriage, he obtained the following writing signed by
[ Bailii ]
 
Henrietta Sinclair,and Janet Williamson, Formerly Sinclair etc [1789] UKHL 3 - Paton - 113
27 Mar 1789
HL

Family
Marriage Settlement - Relief among Heirs - Res Judicata. - The questions in this case were, 1st, Whether a deed executed by David Sinclair of Southdun in 1716 was to be considered a marriage settlement? 2. Whether it was competent to enter into that question, in respect of it being res judicata, by a decree pronounced between the same parties in 1763? 3. Whether the heir in possession, who is bound to keep down the interest of the debt due on the estate, during his possession, has relief against the other heirs of line taking separate estates? The Court of Session
[ Bailii ]
 
Evans v Evans [1790] EngR 2448; (1790) 1 Hag Con 35; (1790) 161 ER 466
2 Jul 1790


Family
Divorce by reason of cruelty. What circumstances constitute cruelty in construction of law. Dismissed
[ Commonlii ]

 
 Evans v Evans; Misc 2-Jul-1790 - [1790] EW Misc J45; 161 ER 466; (1790) 1 Hag Con 35
 
Evans v Evans [1790] EWCC J45; 161 ER 466; (1790) 1 Hag Con 35
2 Jul 1790
ConC
Sir William Scott
Family, Ecclesiastical
The court considered a petition for divorce for cruelty. Sir William Scott said: "For though in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individuals; yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off; they become good husbands and good wives from the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes. If it were once understood that upon mutual disgust married persons might be legally separated, many couples who now pass through the world with mutual comfort, with attention to their common offspring and to the moral order of civil society, might have been at this moment living in a state of mutual unkindness, in a state of estrangement from their common offspring, and in a state of the most licentious and unreserved immorality. In this case, as in many others, the happiness of some individuals must be sacrificed to the greater and more general good. "
[ Bailii ]
 
Kemp v Coleman [1795] EngR 2269; (1795) 1 Salk 156; (1795) 91 ER 144 (A)
1795


Family, Equity
A bond given to refund part of a portion without father’s privity, is void.
[ Commonlii ]
 
Dacosta v Villa Real [1795] EngR 970; (1795) 2 Str 961; (1795) 93 ER 968 (D)
1795


Family
Which was an action upon a contract of marriage per verba de futuro, brought by the gentleman against the lady, who pleaded non assumpsit. When the plaititiff had opened his case, the defendant offered in evidence a sentence of the Spiritual Court in a cause of contract, where the Judge had pronounced against the suit for a solemnization in the face of the church, and declared Mrs. Villa Real free from all contract. And the Chief Justice held this to be proper and conclusive evidence on non assumpsit ; that it waa a cause within their jurisdiction, though the contract was per verba de futuro, and though the suit there is diverso intuitu, being for a specific performance, as far as admonition will go, and this for damages. Yet contract or no contract is the point in issue in both. And the plaintiff was nonsuit.
[ Commonlii ]
 
Lindo, By Her Guardian v Belisario (1795) 1 Hag Con 216; [1795] EngR 4123; (1795) 1 Hag Con 216; (1795) 161 ER 530
5 Jun 1795

Sir William Scott
Family
(Consistory Court of London) Sir William Scott considered the notion of marriage: "The opinions which have divided the world, or writers at least, on this subject, are, generally, two. It is held by some persons that marriage is a contract merely civil - by others, that it is a sacred, religious, and spiritual contract, and only to be so considered. The jurisdiction of the Ecclesiastical Court was founded on ideas of this last described nature; but in a more correct view of this subject, I conceive that neither of these opinions is perfectly accurate. According to juster notions of the nature of the marriage contract, it is not merely either a civil or religious contract; and, at the present time is not to be considered as originally and simply one or the other. It is a contract according to the law of nature, antecedent to civil institution, and which may take place to all intents and purposes, whenever two persons of different sexes engage, by mutual contracts, to live together."
1 Citers

[ Commonlii ]
 
Govier v Hancock (1796) 6 Term Rep 603
1796


Family
A wife's agency of necessity subsisted only if the wife was justified in living apart from her husband. She would lose it for ever if she was guilty of adultery, no matter how badly her husband had behaved.
1 Citers


 
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