The challengers for the Earldom of Cassillis, 1792-1825
Copyright © Iain Kennedy February 2008
Version 2 February 9th, 2008 - added text of Entails, plus Court of Session papers
On the 18th December 1792 David, 10th Earl of Cassillis, died at his home at Culzean Castle, leaving no issue. The lure of the estates of Culzean and Cassillis led no less than four parties to claim the Earldom, not to mention countless amateur genealogists since. The legal battles went on until 1825 and were eventually decided by the House of Lords in London. This was the second time the Lords had been called on to decide the title, they had previously settled in favour of Thomas Kennedy for the 9th Earl over William, the Earl of March and Ruglen, in the 1760s. In this article I will expand on the outline story given by Michael Moss , but still only scratching the surface of the vast amount of legal papers and correspondence which survives on the subject.
David was from a large family of 20 siblings, only 6 of whom it is believed survived to adulthood. There were three sons, John, Thomas and David. John predeceased their father and Thomas held the title of 9th Earl but died without issue. There were also three adult sisters, Elizabeth, Anne and Clementina. All three of these married, the eldest Elizabeth crucially married Sir John Cathcart of Carleton, Baronet in 1729. The Cathcarts' first born son John died in 1785 and his younger brother (Sir) Andrew became the Cathcart family heir.
With no direct male heirs left from the line of Sir John Kennedy of Culzean, father to the 9th and 10th Earls, the same issue that had dogged the House of Lords thirty years ago resurfaced; would these titles stay with the male lines, whever they survived, or go to the nearest relative, the late Earl's nephew Sir Andrew Cathcart? As David had lain dying, Sir Andrew had beaten a path to his door in full expectation of succeeding to the estates, based on his understanding of the previous legal instruments in place. When the Earl died and the funeral arrangements took place, Cathcart was expecting to be in the lead. Instead he was advised by the late Earl's Edinburgh lawyer John Hunter that his uncle had secretly drawn up a settlement 'disinheriting' him (as he saw it) and leaving the estates to his second cousin*, Archibald Kennedy, a Royal Navy Captain from New York, recently moved to London. The latter maintained a discrete absence from both the deathbed and funeral but had his son and heir Archibald present at Culzean.
[*although variously referred to as a cousin or distant cousin, David and Archibald were in fact second cousins once removed].
What follows is a simplified tree showing the descent of the key players in the dispute. It is not intended to be a complete tree or show all siblings - especially the 19 brothers and sisters of David Kennedy!
In legal terms, the late Earl had executed two special deeds called tailzies or entails, one in 1783 and one in 1790. A tailzie is an instrument to dictate to future generations who can inherit an estate and to prevent it being sold or leaving the family; it could also insist on an inheritor keeping the family name. Normally they are supposed to be recorded in the Register of Tailzies although this often took place some time after the event. When Moss refers to these two entails as 'secret' this can be taken in more than one way. They were not recorded in the Register of Tailzies at the time of execution or indeed the date of death of their writer, David; they were also unknown to the person they were partially aimed at, the deprived Cathcarts. Registering them some time after the event is, in fact, quite common. Although it could complicate proceedings, their lack of registration in itself is not a complete impediment.
The next stage was 'The Battle for the Charter Chest'. Cathcart naturally wanted to see the entails and demanded access to the charter chest, his right as inheritor. Except, he wasn't the inheritor! Instead the chest was locked in front of witnesses and the key handed for safe keeping to Thomas Kennedy of Dunure. He wasn't supposed to hand it to anyone without prior agreement. But a few days later (January 9th, 1793) in Edinburgh, John Hunter produced the entails and showed them briefly to Cathcart - ironically they weren't in the charter chest but had been sealed and held with the Keeper of Records at Edinburgh. By the time Cathcart next got to Culzean, he found the keys had already been given away by Thomas Kennedy, citing the now public entails. Subsequently the entails or tailzies were both recorded in the official Register of Tailzies. An index to the Register covering the years 1688 to 1833 can be inspected at the National Archives in Edinburgh; it lists 8 Kennedy tailzies and 4 under Cassillis. The two of interest appear thus:
2 Feb 1790 registered 13 Jun 1793 [No. 912 Vol. 28 folio 57] Cassillis, David Earl of Earldom of Cassillis and others; Shires, Ayr and Wigtown
1 Feb 1783 & 28 Mar 1792, registered 13 Jun 1793 [No. 913 Vol. 28 folio 80] Cassillis, said David Earl of - trust disposition lands of Bardarrock and others; Shires Ayr and Kirkcudbright
Note the date of registration is some six months after the death of David, Earl. The actual entails can be ordered up for viewing (RD1/28) with a day's notice as they are kept offsite. Having said that, the legal case dragged on to appeal for such a length that much is recorded in Court of Session and House of Lords papers, and the charter box dealing with the case within the Ailsa Muniments, GD25/9/35, is itself a vast collection of papers with transcriptions or abstracts of much of the key material. All the legal petitions and answers, the court summons, letters between the two lawyers are there, and there is even a minute of the 'Opening of the Charter Chest' event with an inventory of the key papers examined.
Pending my return to Edinburgh, this is what appears to be a summary of the entail, reproduced in the Ailsa papers.
Minute of meeting held 9th Jan 1793 at Edinburgh
Present Lord Kennedy*; Sir Andrew Cathcart; George Fergusson, Advocate. John Hunter; Andrew Blane**
There was produced a sealed packet which had been delivered by the late Earl of Cassillis to Mr John Hunter, Writer to the Signet and by him to the Keepers of the Record; and the seals being found entire there was produced;
5. A deed of entail of the estate of Cassillis and Culzean, dated 2nd Feb 1790
And the papers above mentioned are returned to Mr Hunter to be put upon record for behoof of all concerned in the office of Mess. H.S.
Signed Kennedy, Cathcart
* Lord Kennedy was an honorary title sometimes used by the Kennedy heir, ie the eldest son of the current Earl - in this case the previously mentioned Archibald Kennedy junior.
** Andrew Blane was Sir Andrew Cathcart's lawyer. After Cathcart's death, Blane continued the legal cases which then are referred to as 'Blane v. Cassillis'.
Within the Ailsa papers is a copy of a summons summoning Captain Archibald Kennedy to appear, bringing with him certain documents. Apart from the somewhat sarcastic reference to their being 'pretended' (this of course is the description attached to the documents by Cathcart, the appellant), it is an accurate abstract of the entail.
'George &c our will is, and we charge you, that on sight hereof ye pass, and in our name and authority lawfully summon, warn and charge our right truly and well beloved cousin Archibald Earl of Cassillis designed in the deed of entail after-mentioned 'Captain Archibald Kennedy of the Navy, and late of New York, North America, now residing in the city of London', Archibald Kennedy, Esq his eldest son commonly called Lord Kennedy, John Kennedy second son and Robert Kennedy third son of the said Earl.
and the said Archibald Earl of Cassillis as administrator in law to such of his said sons as are minors
... to compear before the Lords of our Council and Session at Edinburgh
and the said defenders in like manner to bring with them, exhibit and produce time and place aforesaid, a pretended deed of entail alleged to have been executed by the said David Earl of Cassillis of date the 3d day of Feb 1783; and another pretended deed of entail bearing the date 2d day of Feb 1790 said to be executed by the said David Earl of Cassillis, binding and obliging himself and his heirs, as well male as of tailzie, conquest and provision as of line, and successors whatsever, to make due and lawful resignation of the said several lands baronies mills teinds fishings and others before enumerated, and other lands and heritages contained therein specificed, in favour, and for new infeftment of the same to be made and granted to himself and the heirs male of his body; whom failing, to the said Archibald now Earl of Cassillis therein designed, as already said, Captain Archibald Kennedy of the Navy, and late of New York, North America; whom failing, to the said Archibald Kennedy his eldest son and the heirs male of his body; whom failing to the said John Kennedy second son of the said Earl and the heir male of his body; whom failing, to the said Robert Kennedy, the said Earl's third son, and the heirs-male of his body; whom failing to any other heirs male procreated or to be procreated of the body of the said Earl; whom failing, to the other nearest lawful heirs-male whatsover of the deceased John Earl of Cassillis in their order; whom failing, to each other person or persons as he Earl David should at any time thereafter nominate, design or appoint, by any writing under his hand, to succeed as heir of tailzie and of provision, in and to the foresaid whole lands and estate; and failing such nomination, or all of the persons therin named or described, to his nearest lawful heirs whatsoever; But with and under the conditions provisions restrictions limitations clauses prohibitory, irritant and resolutive, reservations, powers and faculties inserted in said deed of entail.'
In short – all his estates to go to his nearest male heir, his second cousin Archibald Kennedy.
I have now examined volume 28 of the Register of Tailzies at General Register House in Edinburgh. There are three Cassillis tailzies in succession, with the two I listed earlier preceded by one from John, Eighth Earl of Cassillis, written on 29th March 1759. All three were recorded in the Register on 13th June 1793. The entries include preamble explaining the background to their registration - this creates a slightly puzzling effect as the preamble for the first refers to recent events following the death of the tenth Earl. Although I hadn't previously mentioned it, it is clear that the first tailzie is very relevant to the later dispute so I will describe that first. The eighth earl is not in the tree diagram on this page but was the last of the 'main' Cassillis line.
Register of Tailzies vol. 28 folio 39-57. 29 Mar 1759, registered 13 Jun 1793. John, Earl of Cassillis.
'At Edinburgh the thirteenth day of June one thousand seven hundred and ninety three years anent the petition given in and presented to the Lords of Council and session for and in name of The Right Honourable Archibald Earl of Cassillis and of the Right Honourable Archibald Earl of Eglinton, the Right Honourable Archibald Lord Kennedy, the honourable Henry Erskine Dean of Faculty of Advocates Sir William Miller of Glenlee Baronet, Thomas Kennedy Esq of Denure, David Cathcart of Greenfield advocate and John Hunter writer to the Signet, Trustees appointed by David late Earl of Cassillis
Shewing that John Earl of Cassillis upon the twenty ninth of March seventeen hundred and fifty nine executed a disposition and deed of entail of the lands of Cassillis and others belonging to him. ..
The petitioner Archibald Earl of Cassillis was on the twelth day of March last served and retoured nearest lawful heir male and of tailzie and provision to the said David Earl of Cassillis conform to and in ? of the disposition and deed of entail executed by the said John Earl of Cassillis.
David Earl of Cassillis by the trust disposition already mentioned vested in the Earl of Eglinton and the other petitioners the rents of his estates of Culzean and his personal estate in trust for payment of his debts. This deed bears a reference to the entail of his estates of Culzean and Cassillis. It also authorises and requires his trustees to present both his own deed of entail and the entail executed by John Earl of Cassillis for the purpose of having them recorded within six months after his death.
The different extracts of the deeds above mentioned are now produced and the petitioners being desireous to have the same recorded in the register of Taillies conform to the directions of the Act of Parliament sixteen hundred and eighty five have made this application in order that their lordships may [ record them ]..,
Disposition and Assignation by the said John Earl of Cassillis in favour of himself and his heirs of Taillie therein mentioned
I, John Earl of Cassillis Lord Kennedy for the care and regard which I have to the well and standing of my family and that my estate may continue with the heirs of my own body which failing with my other heirs of Tailie and provision herein after named or described and in the Sirname of Kennedy and for diverse other good reasonable and weighty causes and considerations me moving Doe by these presents bind and oblige me my heirs and successors whatsoever to make due and lawful resignation of all and taill my lands lordships baronies patronages
[there then follows a vast listing of all the lands he owned, which one day I must type up...]
All which lands and others above written lye within the sheriffdom of Air and were with certain other lands and other subjects united annexed and incorporated into one haill and free earldom and lordship to be called The Earldom and Lordship of Cassillis by Charter under the Great Seal of Scotland granted in favour of the deceased John Earl of Cassillis grandfather of me the said John now Earl of Cassillis dated at Whitehall the 24th day of April 1671 and sealed the 27th day of October 1673
... to myself and the heirs male of my body which failing to the heirs female of my body (the eldest always succeeding without division) and the heirs whatsoever of their bodys (also without division) which failing to Sir Thomas Kennedy of Culzean Baronet and the heirs male of his body which failing to Mr David Kennedy Advocate brother german of the said Sir Thomas Kennedy and the heirs male of his body which failing to such person and persons as I shall at any time hereafter nominate.
[this is why we need another diagram - suffice to say that the eighth earl had no issue either male or female]
... providing and declaring that the heirs of my body and all the other heirs of Taillie or provision shall be holden and obliged immediately upon their succession and in all time thereafter to use the Sirname of Kennedy and to use and bear the title designation achievement and armorial coat of the family of Cassillis in chief of their own proper title ...
in all cases where the succession shall open to heirs female, the eldest if there be more than one in the same degree shall exclude all the others as heirs and that in case such heir female shall happen to be unmarried at the time of her succession she shall be holden and obliged to marry a Gentleman of the Sirname of Kennedy, at least a Gentleman who shall take on him the said Sirname [and her subsequent heirs likewise...]
Providing likeways and it is by these presents expressly provided and declared that it shall not be leisome or lawful to nor in the power of any of the heirs of my body, or of any of the heirs male or female appointed or to be appointed to succeed to them as aforesaid To alter innovate or change this present Taillie and the order of succession established thereby, not to do any deed directly or indirectly whereby the same may be anyways altered, innovated or changed, Nor to sell, wadsett or dispone the lands and estate above mentioned or any part thereof...
... written in Edinburgh the twenty ninth day of March one thousand seven hundred and fifty nine years, before these witnesses James Fraser and Hugh Main both my servants and the said Andrew Chalmers writer in Edinburgh who is inserter of the date and witnesses names and designations of Sir Thomas Kennedy of Culzean and Mr David Kennedy his brother towards the foot of page eighth ... and which blanks are filled up before my signing hereof (signed Cassillis Andr. Chalmers witness Hugh Main witness.)
Register of Tailzies vol. 28 folio 57-80. 2 Feb 1790, registered 13 Jun 1793. David, Earl of Cassillis.
Deed of entail by the said David Earl of Cassillis. Know all men by these presents me David Earl of Cassillis heritable proprietor of the lands Earldom Lordship Baronies and others underwritten For as much as the now deceased John Earl of Cassillis executed by him at Edinburgh the 29th day of March 1759 ... did settle entail and resign all and whole the earldom and lordship of Cassillis and all and sundry the lands etc to and in favour of himself and the heirs male of his body which failling to the heirs female of his body (the eldest always succeeding without division) which failling to Sir Thomas Kennedy of Cullean Baronet and the heirs male of his body whom failing to Mr David Kennedy Advocate brother german to the said Sir Thomas Kennedy and the heirs male of his body which failling to such person and persons as he should at any time thereafter nonimate and failling of such nomination or of all the persons therein named or described, to his nearest lawful heirs male whatsoever which failling to his nearest lawful heirs whatsoever ...
And whereas the said John Earl of Cassillis died without exercising the power reserved to him of naming heirs to succeed in the said estate failling heirs male of my body, whereby in the event of my death without heirs male existing of my body , the prior substitutes already failled, the succession to the said earldom and estate will fall and pertain to the next heir male whatsoever of the said John Earl of Cassillis and continue to descend to his other heirs male ... And it is my desire and purpose agreeably to the general plan of the said John Earl of Cassillis's settlements that not only the said lands and estate ... that it is proper that a new entail should be executed calling the said heirs male of the family of Cassillis to the succession as well of the whole lands and estate contained in the foresaid Deed of Entail ... likewise inserting a clause for enabling me to make an additional nomination of heirs in order to continue the representation of the family after the said heirs male whatsoever are exhausted if I shall think proper so to do ...
[list of lands then follows ...]
...in favour and for new infeftment of the promises to be made given and granted to myself and the heirs male of my body whom failling to Captain Archibald Kennedy of the Navy and late of New York North America now residing in the city of London whom failing to Archibald Kennedy his eldest son and the heirs male of his body whom failing to John Kennedy second son of the said Captain Archibald Kennedy and the heirs male of his body which failling to Robert Kennedy third son of the said Captain Archibald Kennedy and the heirs male of his body which failling to any other heirs male procreated or to be procreated of the body of the said Captain Archibald Kennedy which failling to the other nearest lawful heirs male whatsoever of the said deceased John Earl of Cassillis make of said entail in their order which failling to such person or persons as I shall at any time hereafter nominate and failing such nominations or of all the persons therein named or described to my nearest lawful heirs whatsoever heritably in such due and competent form as ... providing and declaring that the heirs male and female of my body and all other heirs of taillie and provision shall be holden and obliged immediately upon their succession and in all time thereafter to use the Sirname of Kennedy ...
[this then is the key sentence; David effectively nominates Captain Archibald Kennedy as his heir, as he has no issue himself]
Providing also as it is hereby provided and declared that in all cases where the succession shall open to heirs female the eldest if there be more than one in the same degree shall exclude all the others as heirs portioners and succeed to the whole without division and in case such heir female shall happen to be unmarried at the time of her succession she shall be holden and obliged to marry a Gentleman of the Sirname of Kennedy at least a Gentleman who shall assume the said Sirname and that such female whether married or unmarried at the time of her succession and her heirs succeeding to her shall from and after the time of their respective successions and while they severally and respectively enjoy my estates aforesaid be holden and obliged to take and use the Sirname of Kennedy and to use and bear the title designation achievement and armorial coat of the family of Cassillis in chief as their own proper title designation achievement and Coat Armorial.
Providing likewise as it is by these presents expressly provided and declared that it shall not be leisome nor lawful nor in the power of the heirs male of my body or any of the heirs male or female appointed or to be appointed to succeed to them as aforesaid to alter innovate or change this present Tailzie and the order of succession established thereby
[folio 74 ]
... and whereas I am at present owing considerable debts, a great part of which is heritably secured on my estate of Cullean and others. Therefore I have upon the first day of February one thousand seven hundred and eighty three years executed a trust deed of the rents of my said estate of Culzean and others and of the property and superiority of my unintailled lands of Bardanoch, Portmark and Polmeadow and of my whole personal estate (excepting as therein mentioned) which shall belong to me at the time of my decease in favour of the trustees therein mentioned for the purpose of payment of my said debts and such other debts as may be due by me thereby the better to conform and establish this present entail, ...
And also I hereby not only oblige the next heir called to succeed to me and failling him all the other heirs successful in their order to obtain this present Disposition and Tailzie recorded in the register of Tailzies and registered in the books of Council and Session within the space of six months after my decease But also give full power and commission to as my procurators or to one or other of the heirs of Entail to cause present these presents before the Lords of Council and Session judicially and procure the same recorded in the register of Tailzies
In witness thereof of these presents consisting of this and the fourteen preceeding pages of stamped paper and of one marginal note on each of the pages 8 and 13 hereof, all written by David Stewart clerk to John Hunter Writer to the Signet are subscribed by me at Edinburgh the second day of February 1790 before these witnesses James Reid also clerk to the said John Hunter and the said David Stewart writer Signed Cassillis James Reid Witness Dav. Stewart witness
Register of Tailzies vol. 28 folio 80-. 1 Feb 1783 & 28 Mar 1792, registered 13 Jun 1793. David, Earl of Cassillis.
The third entail is not so vital to the dispute but did show [in the 1792 annex] the appointment of Captain Archibald Kennedy as one of the estate Trustees during David's lifetime. Note also the early appearance of Andrew Cathcart's father John as one Trustee! The main purpose of this entail was to make arrangements for David's debts to be paid off.
'Disposition in trust by David Earl of Cassillis. I, David Earl of Cassillis whereas I have of this date executed a Deed of Tailzie and Settlement of my lands and estates of Cassillis and Culzean and others therein mentioned and as I am owing sundry debts which if they shall be due at the time of my death with other debts I may hereafter contract, ...
I hereby dispone convey and make over to and in favours of the Right Honorable Archibald Earl of Eglinton the Right Hon. George Earl of Dalhousie the Right Hon. Thomas Miller of Glenlee Lord Justice Clerk, Sir John Cathcart of Carleton Baronet, Robert Macqueen Esq of Braxfield one of the senators of the College of Justice, ? Campbell Esq Advocate, Thomas Kennedy Esq of Denure, James Hunter Blair Esq of Dunskey merchant in Edinburgh, Robert Kennedy Esq of Daljarrock and John Hunter Writer to the Signet as trustees for the uses ends and purposes ..All and whole the four merk land of Bardarroch of old extent now commonly called Easter and Wester Bardoarroch with the manor places houses biggings yards parts pendicles and pertinents thereof with the tiends parsonages and viccarage of the same as well property as superiority as sometime possessed by Agnes and Janet Ritchmonts and their tenants... as also the lands of Polmark...as also the lands of Polmeadow
... in witness thereof I have subscribed these presents written by Robert Hunter clerk to John Hunter at Edinburgh the first day of February 1783 before these witnesses James Stewart clerk to the said John Hunter and the said Robert Hunter signed Cassillis James Stewart witness Robert Hunter witness
I David Earl of Cassillis being resolved to appoint more trustees, appoint Sir William Miller of Glenlee Baronet, Captain Archibald Kennedy of the navy now residing in London, Captain Archibald Kennedy of the army his eldest son and David Cathcart* Esq of Greenfield Advocate to be joint trustees along with the other surviving trustees appointed by the two proceeding deeds. In witness thereof, 28 Mar 1792 at Edinburgh witness Gilbert Mchaffie and David Baxter both my servants signed Cassillis Gilbert Mcaffie witness David Baxter witness.'
* David Cathcart is not related to the Cathcarts of Carleton who disputed the title.
Court of Session case papers at West Register House in Edinburgh, CS230/C/10/1
Although the Ailsa muniments hold much material on the Cathcart v Cassillis legal dispute, the formal case papers are held at West Register House. Further papers are held at the Parliamentary Archives in London from when the case was appealed to the House of Lords.
The case bundle contains 12 documents, one of which is an inventory of the papers presented in court, which roughly corresponds to the former. The official inventory reads thus:
Inventory of the exhibition ad delib. Sir Andrew Cathcart agt.the Earl of Cassillis
2 ? [possibly the exec of summons doc]
3 Roll of defenders names
4 Defences for the Earl of Cassillis
5 Extract of deed of entail of the estates of Cassillis & Cullean registered in the books of session 30 Aug 1793 [already transcribed above, and not present in the bundle]
6 General retour in favour of the Earl of Cassillis 19 Apr 1793
7 Minutes of sealing and opening of the repositories of the late Earl of Cassillis at Cullean 18 Dec 1792
8 Note of papers found in the repositories of the late Earl of Cassillis
9 Representations for Sir Andrew Cathcart
10 Answers for the Earl of Cassillis
11 Extract procy of resignation Sir John Kennedy to himslef registered in books of session 31 Jul 1747
12 Disposition by Sir Thomas Kennedy in favour of himself and others registered in books of session 7 Jan 1748
13 Answers for Sir Thomas Kennedy Esq
14 Petition for Sir Andrew Cathcart 13 May 1794
15 Note of the Earl of Cassillis13 Jun 1794
16 Answers for Earl of Cassillis and others
17 Answers for Sir Thomas Kennedy of Denure
18 Printed copy of the aforesaid petition no 14 with printed appendix
I follow with some extracts from the more interesting of these, such as actually survive in the bundle.
Item 1. Summons of deliberation:
Cathcart v Lord Cassillis
22 Nov 1793
George by the grace of God King of Great Britain France and Ireland defender of the Faith
Whereas it is humbly shown to us by our belovit Sir Andrew Cathcart only lawful son procreated between the deceased Sir John Cathcart of Carleton Baronet and Dame Elizabeth Kennedy his spouse That the pursuer as only lawful son and heir of his deceased mother the said Dame Elizabeth Kennedy who was oldest sister germane to the deceased Sir John Kennedy of Culzean Baronet, of Sir Thomas Kennedy also of Culzean Baronet, and of David Kennedy the last Earl of Cassillis, is one of the apparent heirs portioners of line of the said Sir John Kennedy, and the said Thomas and David Earls of Cassillis all deceased without issue;
... [citing a procuratory of resignation 12 Apr 1743 by Sir John Kennedy, that after the failing of the male lines of the aforementioned] the heir male procreated of the marriage between the said Sir John Cathcart and Dame Elizabeth Kennedy father and mother of the pursuer Sir Andrew Cathcart are called to the succession of the several lands and baronies therein enumerated
... and true it is that our right trusty and well beloved cousin Archibald now Earl of Cassillis et al have in their custody [sundry documents etc] ... particularly a deed of entail alledged by the said David late Earl of Cassillis in his favour... all of which they refuse to exhibit to the pursuer ...
quotes John Hunter's words to him and his actions in sealing the entail and depositing with Alex Robertson keeper of records; his refusal to let him study all the papers in details; ... dispute over custody of the keys ...
our will is therefore and we charge you that in our name and authority ye law fully summon warn and charge the said Archibald now Earl of Cassillis et al personally or at their respective dwelling places upon six and six days warning, if within Scotland, and if furth thereof by open proclamation at the market cross of Edinburgh and the Pier and shore of Leith upon sixty and fiteen days warning for first and second diets, to compear before the Lords of Council and session at Edinburgh ...
Item 6. General retour in favour of Archibald Kennedy, 19 Apr 1793.
This is the legal instrument by which Archibald was formally 'served heir' to his cousin David the late Earl. In theory this means that he had already proved his legal right, although it is interesting that it predates the formal registration of the entail that gave him his rights. I am assuming that he had to show the entail at this point. There is a separate register of these entitled 'Inquisitionem ad capellam regis retornatarum abbreviatio'. The entry in the latter reads thus:
Archibald Earl of Cassillis; to David, Earl of Cassillis; Heir of Taillie and Provision General dated 19th April 1792 registered 25 Apr 1793
But this follows this other entry which more fully describes his relationship with David:
[Archibald Earl of Cassillis; to his cousin David, Earl of Cassillis, who died 18th Dec. 1792; Heir male and of Tail. And Provn. Specl. Dated 12th Mar 1793 ]
The retour in the case papers is in Latin on a single sheet of stiff parchment. Note that the dates are getting jumbled up; on the parchment cover it says 19 Apr 1792 but underneath it had read 1793. I would venture that 1793 is correct as David only died in December 1792 and you aren't served heir until after the death.
Item 4. Defences for the Earl of Cassillis 1793
'... the late earl did of this date [2 Feb 1790] execute a disposition and tailzie duly recorded in the Books of Session and record of entails of all and sundry the said lands in favour of the heirs male of his own body whom failing to the defender Archibald Earl of Cassillis...In these circumstances the action by Sir Andrew Cathcart is by the above deed of tailzie totally and absolutely excluded, is inept and must be dismissed accordingly...'
Item 13. Answers for Sir Thomas Kennedy of Dunure 1794
Thomas continues his bit part in the drama with a long legal argument about what he did with The Key
'The petition now to be answered details at great length the loss sustained by Sir Andrew Cathcart by our act of delivering up the keys for the repositories at Culzean to the present Earl of Cassillis...'
* * * * * *
NAS GD25/9/35 Ailsa Muniments: Cathcart case papers
NAS CS230/C/10/1 Court of Session case papers, Cathcart v Cassillis 1793
NAS RT1/28 Register of Tailzies
Inquisitionem ad capellam regis retornatarum abbreviatio
Michael Moss, The Magnificent Castle of Culzean and the Kennedy family, Edinburgh University Press, 2002