Scottish Court of Session Decisions

Hugh Stewart, 56 Newington Buildings, Causewayside, Edinburgh, as trustee on the sequestrated estate of the late Galloway Mackintosh, tweed merchant, sometime in Elgin, and Mrs Marie O'Neill or Mackintosh,

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his widow and executrix-dative, raised an action against John Henderson, agent, Bank of Scotland, Lockerbie, and James Charles Stewart, law-clerk, Lockerbie, testamentary trustees of the late James Stewart, solicitor, Lockerbie. In it the pursuers sought, inter alia, to have reduced an interlocutor pronounced by Lord Well-wood (Ordinary), dated 13th July 1893, and interlocutors pronounced by the Second Division of the Court of Session, dated 1st November 1893 and 17th January 1894, in an action raised by the deceased Galloway Mackintosh against the deceased James Stewart concluding for payment of £1000 as damages. The interlocutors sought to be reduced assoilzied the defender James Stewart from the conclusions of the summons in the said action and found the pursuer Galloway Mackintosh liable in expenses (£125, 11s. 10d.).

The pursuers also concluded for a sum of £1500 as damages.

The pursuers, inter alia, averred that the late James Stewart had procured and carried through collusively and fraudulently on 18th December 1891 a pretended sale of the furniture and effects belonging to the late Galloway Mackintosh, and had by intimidating other purchasers under pretext of his rights as a landlord, by employing bogus bidders, by making use of a decree obtained on a petition of sequestration for rent irregularly served, and otherwise, fraudulently possessed himself of such furniture and effects at a price largely under their real value; that on the facts becoming known to the late Galloway Mackintosh, he on 6th February 1893 raised the said action in the Court of Session to recover damages laid at £1000, but that by the interlocutors sought to be reduced the Court assoilzied the defender the late James Stewart, and found the pursuer the late Galloway Mackintosh liable in expenses, taxed at the sum of £125, 11s. 10d., on failure to pay which sum the late Galloway Mackintosh had been made bankrupt on 18th July 1896.

The pursuers further averred—“The said judgments were procured by the said James Stewart by the said corrupt devices and by false and corrupt evidence. From the date of the said action being threatened he fraudulently and corruptly set himself to devise and did devise the deception of the Court. The case of Mackintosh was supported by a number of witnesses, and their depositions are referred to, as well as Lord Wellwood's comments thereupon. Mackintosh's witnesses were contradicted only by Stewart. If Stewart had not tendered himself as a witness and given the false evidence he did give Lord Wellwood and the Second Division of the Court would have decided the said action in favour of the said Galloway Mackintosh, because Mackintosh and his witnesses would have been believed by the judge but for the perjury and conspiracy of Stewart.… James Stewart, however, knowing that the case must be decided against him unless he tendered himself, went into the witness-box in order to swear falsely that the material evidence given for Mackintosh was untrue, and to falsely invent other evidence, both of which things he did.” …

The pursuers also made averments of particular statements made by the said deceased James Stewart in evidence, which they alleged were false and perjured.

The defenders, inter alia, pleaded—“(2) Res judicata. (3) The pursuers' averments being irrelevant, et separation the action being incompetent, decree should be pronounced dismissing the same.”

On 25th January 1905 the Lord Ordinary ( ardwall) assoilzied the defenders.

Opinion.—“This is an action at the instance of Hugh Stewart, the trustee on the sequestrated estate of the late Galloway Mackintosh, and of Mrs Mackintosh, who is described as widow and executrix-dative to the said Galloway Mackintosh, and it is directed against the executors of the deceased James Stewart, solicitor, Lockerbie. But at the discussion in the procedure roll it was stated that the argument was to proceed as if the trustee alone were pursuer, and that the only claim insisted in by him was in respect of pecuniary loss to the bankrupt estate, and not for solatium for injury to the feelings or reputation of the bankrupt who died on 7th April 1897, the widow's interest being in any reversion that might remain after satisfying the creditors in the sequestration, if indeed there are any creditors. The summons concludes ultimately for damages, but as a necessary preliminary for reduction of certain interlocutors of this Court, by which the deceased James Stewart was assoilzied from the conclusions of a summons at the instance of the said Galloway Mackintosh, and the latter was decerned to pay the sum of £125, 11s. 10d. of expenses. It was on this decree that the sequestration of Galloway Mackintosh proceeded, and accordingly, if the trustee is successful in this action it would seem that the ground of his own title would be cut away, and recal or reduction of the sequestration might at once be obtained by anyone having an interest.

“It is not said, and it does not appear, that any part of the said sum has been paid, and the only damage now sued for in the action appears to be the sum of £200, being the alleged expenses incurred by the deceased Galloway Mackintosh in the former action, the expenses of the present subsisting sequestration, and the loss claimed in the former action in respect of the dishonest sale of the deceased Galloway Mackintosh's furniture, which was alleged to have cost £147, 17s. 3d., to have been improperly appraised at £41, and to have been improperly sold for £38, 10s.

The dates are of importance in considering the case. The alleged illegal acts of the late James Stewart were committed in 1891; the former action was raised on 6th February 1893, and finally disposed of on 17th January 1894; the estates of Galloway Mackintosh were sequestrated on 18th July 1896; Galloway Mackintosh died on 7th April 1897. His widow, one of the pursuers in the present action, was notwithstanding

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the sequestration appointed executrixdative on 23rd July 1897. The act and warrant confirming the present trustee is dated as late as 18th July 1901. James Stewart died towards the end of 1902, and the present action was raised on 1st November 1904.

The ground of reduction is that the decrees under reduction were obtained through the perjury of the late James Stewart.

As a rule, the fact that perjury has been committed in the trial of any case is not a sufficient ground for reducing the judgment pronounced in such case (see Lockyer v. Ferryman, June 28, 1876, 3 R. 896, 4 R. (H.L.) 35; Begg v. Begg, 16 R. 550; and Forster v. Forster, January 21, 1871, 9 Macph. 445). It is maintained for the pursuer, however, that the above were all cases where the perjury was committed by witnesses other than the parties to the cause, and that in the present case the perjury of the defender in the former action being a fraud on his part forms a good ground of reduction in respect that the law will not allow a person to take benefit by his own fraud, and it is upon this principle that subornation of perjury, as distinguished from perjury, has been held to be a good ground of reduction of a decree following upon the trial in which it has been committed. I am of opinion, however, that the real distinction between perjury and subornation of perjury as a ground of reduction lies in this, that the former is committed in open court and that the judge or jury have thus an opportunity of deciding whether it is perjury or not, whereas subornation of perjury is a crime committed outwith the court, and as a rule is not exposed at the trial of the cause, and therefore is not an element entering into the decision of the cause. Accordingly, to allow decrees to be reduced on the ground of perjury would simply be opening the door to the re-trial of causes which had been heard and decided, and to which the plea of res judicata applies. The present is peculiarly a case for applying the rule against allowing decrees to be reduced on the ground of there having been perjury at the trial. Lord Wellwood's opinion in the case, which will be found in the reclaiming note in the former action, and which is referred to by the pursuer on record, brings this very clearly out. He says—‘Unfortunately here the evidence on neither side is free from objection. The whole truth has not come out, and I can say no more than that, in my opinion, the pursuer has failed to prove his case.’ Then again—‘I have anxiously considered the evidence in support of and in answer to these points, and have come to the conclusion that the pursuer has done no more than raise a case of suspicion. But it is not permissible to proceed on mere suspicion or surmise, however strong, and I do not think that on the evidence the charge is made out.’

Again he says—‘The most troublesome cases to decide on evidence are those in which, on certain points, the evidence on both sides is not trustworthy. But it does not follow that because, for instance, a defender's evidence is not to be believed on some points, the pursuer is necessarily entitled to succeed. In the present case, notwithstanding the doubt which I entertain in regard to parts of the evidence, I feel that I should not be justified in finding the charge against the defender proved upon the evidence presented to me.’

His Lordship then goes on to point out that the evidence of damage is slight and unsatisfactory. I am therefore of opinion that in the present action the pursuer has not made out a relevant case for reduction.”

[His Lordship then dealt with a plea of mora, which, if necessary, he would have sustained.] .… .

The pursuers reclaimed, and argued—The decrees complained of should be reduced since they had been obtained by the perjury of one of the parties to the action. No one was entitled to benefit by his own fraud— Begg v. Begg, February 27, 1889, 16 R. 550, 26 S.L.R. 402; Sir George Mackenzie's Works, vol. i, p. 42. An allegation of subornation of perjury entiled to inquiry— Forster v. Forster, January 21, 1871, 9 Macph. 445, 8 S.L.R. 319. The perjury of a party to an action was not to be distinguished from subornation of perjury. The case of Snodgrass v. Hunter, November 8, 1899, 2 F. 76, 37 S.L.R. 60, was not in point since there the question was of a single act of perjury by a witness—here of a fraudulent scheme by one of the parties, of which evidence was only obtainable after the death of the author. The interlocutor of the Lord Ordinary should be recalled and a proof allowed.

Argued for the defenders and respondents—Though subornation of perjury might be a good ground for inquiry, none was averred here, and the perjury of a party was in no wise different from that of any other witness and did not form a ground for an action of reduction— Forster v. Forster and Snodgrass v. Hunter, ut supra. To entitle to inquiry new evidence extrinsic to the matter in issue at the former trial and then unobtainable must be adduced— Lockyer v. Ferryman, March 6, 1877, 4 R. H.L. 32, June 28, 1876, 3 R. 882, 13 S.L.R. 572; Phosphate Sewage Company v. Molleson, July 8, 1879, 6 R. (H.L.) 113, 16 S.L.R. 822; Flower v. Lloyd, 1878, L.R., 10 Ch. D. 327. The doctrine of res judicata was conclusive against the pursuers in the present case. On the effect of a judgment obtained by fraud the Duchess of Kingston's case 2 Sm. L. Cas. 713 was also quoted. (On mora counsel referred to Assets Company v. Bain's Trustees, June 5, 1905, 42 S.L.R. 835, and January 13, 1903, 6 F. 676, 41 S.L.R. 517.)

At advising—