Mackintosh's Trustee and Another v. Stewart's Trustees [1906] ScotLR 43_363 (06 February 1906)

Mackintosh's Trustee and Another v. Stewart's Trustees [1906] ScotLR 43_363 (06 February 1906)

The action is incompetent because it seeks to reduce a decree on the ground that the party who obtained it committed perjury in the original proceedings. The alleged fraud (perjury) was already in issue and decided in the original action. The doctrine of res judicata precludes retrial of the same issues. Only extrinsic fraud, not perjury at trial, can justify reduction of a decree.

Citation
[1906] ScotLR 43_363
Parties
Pursuer: Hugh Stewart (Trustee on the sequestrated estate of the late Galloway Mackintosh) and Mrs Marie O'Neill or Mackintosh; Defender: John Henderson and James Charles Stewart (Trustees of the late James Stewart)
Jurisdiction
Scotland
Judgment Date
06 February 1906
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
appeal dismissed; interlocutor of Lord Ordinary adhered to
Legal Topics
Reduction of Decree, Perjury, Res Judicata, Fraud on the Court, Competency of Action
Civil Procedure Bankruptcy Fraud Reduction of Decree Perjury Res Judicata Fraud on the Court Competency of Action

Case Brief

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Parties

Hugh Stewart (Trustee on the sequestrated estate of the late Galloway Mackintosh) and Mrs Marie O'Neill or Mackintosh

Pursuer

John Henderson and James Charles Stewart (Trustees of the late James Stewart)

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether a decree can be reduced on the ground that it was obtained by perjury of a party to the original action
  2. 2 Whether perjury by a party is a sufficient ground for reduction, or whether only extrinsic fraud (such as subornation of perjury) suffices
  3. 3 Whether the doctrine of res judicata precludes the present action

Ratio Decidendi

The action is incompetent because it seeks to reduce a decree on the ground that the party who obtained it committed perjury in the original proceedings. The alleged fraud (perjury) was already in issue and decided in the original action. The doctrine of res judicata precludes retrial of the same issues. Only extrinsic fraud, not perjury at trial, can justify reduction of a decree.

Court Disposition

appeal dismissed; interlocutor of Lord Ordinary adhered to

Orders

  • The Court adhered to the Lord Ordinary's interlocutor assoilzieing (absolving) the defenders.