Tales from the Session Papers
Phebe Forbes felt trapped and frustrated as she considered her options in the 1750s. Married young in 1752, she was a widow in the next year. She did not get along with her brother-in-law, David Scot (or Scott) of Hedderwick, who had control over the house she lived in as a liferenter and the roads that led to it. When the roof began to fall in, she and her kinsman-by-marriage took their conflict and mutual dislike to court to find out which of them was responsible for funding the repairs. (Eventually it was decided that neither of them was, so they should both pay.)
The Session Papers, the written pleadings of Scotland’s Court of Session, tell us more than the legal points that Forbes and Scot’s advocates sought to score of each other to settle the case. The Petition, Additional Information, and the Answers tell a story of a young woman trapped in a country house while legal processes were underway.
On 24 January 1755, the advocate Andrew McDouall (the soon-to-be Lord Bankton) presented his ‘Additional Information’ on behalf of Phebe Forbes which argued that the Roman law citations her opponent had used were irrelevant to the case of the damaged roof. McDouall argued that the Scottish Statute of 1491, which made the house’s owner liable for repairs, was much more relevant for the situation.*
The roof was not the only problem. Throughout 1755, court processes between the widow and her brother-in-law went back and forth. Phebe was, in effect, confined to the house – and its leaky roof – because of uncontrolled cattle that roamed across the parks that surrounded the building. Advocate Alexander Lockhart described her situation in a ‘Petition’ of 1 December 1755:
…she cannot go over the House Door without going over the Shoes in the Dung of the Cattle, or being exposed to the Injuries of these Cattle, which the Tenant in the Mains, by Permission of the Defender [Scot], turns loose into the Mains, without any Herd[sman] to attend them, whereby they pasture up to the Very Gates of the House, which is not only disagreeable and inconvenient … but frightful and dangerous to the Liferentrix, who cannot step over the Door without being exposed to the Injuries of these Cattle.
See Part 2 for Scot’s response to Phebe’s allegations.
*For a study of the legal issues surrounding the case, see Phillip Hellwege, ‘Enforcing the Liferenter’s Obligation to Repair’, Edinburgh Law Review 18/1 (2014) 1-28 (doi:10.3366/elr.2014.0185)
And. Macdoual, ‘Additional Information for Mrs. Phebe Forbes, Widow of the deceast John Scot of Hedderwick, Defender; AGAINST David Scot of Benholm, now of Hedderwick, Pursuer’ (24 January 1755).
Alex. Lockhart, ‘The Petition fo [sic] Mrs. Phebe Forbes Spouse to Thomas Brodie Writer to the Signet, and her said Husband for his Interest’ (1 December 1755).