Scottish Court of Session Decisions

In 1886 Charles Begg, M.B., residing at Hankow, China, brought an action of divorce for adultery against his wife Rachael Isabella Lock-hart or Menzies or Begg. Upon 25th February 1887 decree of divorce was pronounced by the Second Division of the Court of Session.

Upon 15th December 1887 the defender raised an action for reduction of the said decree, on the ground that it was obtained by an agent of the husband having suborned the witnesses to depone falsely.

The pursuer in the reduction produced the following affidavits of two of the husband's witnesses in the action of divorce:—

“ At Edinburgh, the 14 th day of June 1887 years,—In presence of John Walcot, Esquire, one of Her Majesty's Justices of the Peace for the county of Edinburgh; appeared Elizabeth Fairbairn, servant, No. 9 Rankeillor Street, Edinburgh, who, being solemnly sworn, depones—I was a witness at the trial of Begg against Begg, in which Mrs Begg was divorced from her husband, and I have now to state, with reference to the evidence which I then gave, that the greater part of it was untrue. In particular, I never heard Mr Phelps call Mrs Begg ‘Tui,’ always Mrs Begg, nor have I ever seen Mr Phelps in Mrs Begg's bedroom, either dressed or without his coat or boots, as I said in the Court. I never heard Mrs Begg call Mr Phelps ‘Sam dear’ or ‘Sam darling’, and I never lay awake to listen if he went downstairs after he had come up to bed. After he went into his room he closed his door, and I have never heard him go downstairs until the following morning at breakfast time. I have never seen Mrs Begg iron Mr Phelps' cuffs or collars or shirt. I have never seen Mr Phelps in Mrs Begg's room while she was doing her hair or washing her hands, nor have I ever seen him in Mrs Begg's room after I came in with the children. The statements I made to the above effect at the trial were untrue. All which is truth as the deponent shall answer to God.”

At Edinburgh, the 17 th day of June 1887 years,—In presence of John Walcot, Esquire, one of the Magistrates and a Justice of the Peace for the city of Edinburgh; appeared Christina Ramsay Fairbairn, presently working in the brickworks at Portobello, and formerly a domestic servant, who being solemnly sworn, depones—I gave evidence at the proof in the action of divorce by Mr Charles Begg against his wife on 15th July last. I have been very miserable ever since, seeing that a number of the statements which I made then were untrue, and I have since been, and now am, anxious to make what amends I can for the harm I then did. The whole of the statements which I made as to the alleged intimacy between Mr Phelps and Mrs Begg are not true. In particular, I have never seen Mrs Begg and Mr Phelps kissing one another, and I never heard either of them call the other ‘darling’ What I stated about Mr Phelps taking off his boots in Mrs Begg's house when there was supper was untrue. I have never known them to be in the bedroom together alone with the door shut, and it is not the case that I found the bed disarranged. I never shut the kitchen-door because of anything I saw pass between Mrs Begg and Mr Phelps. Mrs Begg never stated to me that Phelps was her step-brother, nor did she ever say to me that if ever a divorce was brought against her she would be able to work for herself. I never saw Mrs Begg arm-in-arm with Phelps at Portobello Railway Station. I am very sorry for the harm I have done, but I was led into saying the untruths at the trial, and am prepared now to state in any court the true facts of the case. All which is truth, as I shall answer to God.”

The averments on which the pursuer in the action of reduction relied appear from the following opinion of the Lord Ordinary, who found the averments irrelevant and dismissed the action.

“ Opinion.—The object of the present action is to reduce a decree in foro pronounced in the Court of Session, on the ground that the witnesses were perjured and were suborned.

To aver that the witnesses in a cause were perjured is not sufficient in an action of reduction. In almost every case that is tried there is conflicting evidence. Much of it is undoubtedly false, and it is for the judge or the jury to find out on which side the truth lies. Therefore, an allegation that the successful party obtained a verdict or decree in consequence of perjured evidence is irrelevant as a ground of reduction. But the pursuer goes further than an allegation of perjury, and states that the evidence given against her was suborned by a person acting on the defender's behalf, and she maintains that her averments on this head ought to be allowed to be proved. There can be no doubt that subornation of perjury is a ground of reduction, even of a decree in foro of the Court of Session. In the case of Lockyer v. Ferryman, June 28, 1876, 3 R. 896, the Lord Justice-Clerk stated the law as follows—‘I entertain no doubt that an allegation relevantly made, that a decree was obtained by the successful party having induced or bribed the witnesses to depone falsely, is, like any other fraud, sufficient to rescind or subvert a decree so obtained. If a man obtains a decree by bribing the judge or by personating the creditor in a debt, the judgment so obtained must yield to a proof of the facts.’ And in the case of Forster v. Grigor or Forster. January 21, 1871, 9 Macph. 448, Lord Cowan expressed himself as follows—‘There is an essential distinction between an allegation of subornation of perjury and one merely of perjury. If subornation of perjury by the party successful in the action were here alleged, the conduct of the party would be fraudulent; and inasmuch as a party cannot benefit by his own fault or fraud,

Page: 82↓

that would form a relevant ground of reduction of a decree alleged to have been obtained by such means.’ In both of these cases the allegations upon which the decrees were sought to be set aside were found to be irrelevant or insufficient, and the question' now comes to be, whether there is to be found in the present record any relevant statement, such as is necessary to support a charge of the commission of a crime—Hume, i. 381.

The pursuer's allegations consist of an attack upon the credibility of five witnesses who were examined against her. In the first place, she avers that Christina Ramsay Fairbairn gave false evidence when she said that she had seen the pursuer kiss the man with whom she is said to have committed adultery, and that she had seen other familiarities between the parties; and it is averred that such evidence ‘formed a material part of the evidence adduced by her in said action.’ The advising by the Judges in the Inner House has not been reported, and the Lord Ordinary has no means of knowing what view they took of this girl's evidence; but, in so far as regards his own opinion, it was so little material that he discarded it altogether, not because he did not think the girl a credible witness, but because it was a point in the case which was capable of corroboration, and was not corroborated, and also because the witness and the pursuer parted upon unfriendly terms. The pursuer next attacks the witness Elizabeth Fairbairn, and avers that she spoke falsely when she said that she had been a witness of familiarities between the pursuer and the man. The truth or falsehood of her evidence was a matter for the Court to judge of, and the pursuer, knowing this, makes the averment that the two girls gave this false evidence ‘on the suggestion, or at the instigation of a private detective named Alexander Macdonald, who was employed by the defender to concoct and procure evidence against the pursuer;’ and it is said that he enforced these suggestions by ‘various threats against them, alleging that he would “jail” them if they did not say that the particulars he mentioned were true, and urged them at all events to say that they heard those particulars stated.’ Now, the precise meaning of this threat is not very obvious, and if the threat was issued, it seems to have been very senseless. How persons could have been induced to swear falsely by a threat to ‘jail’ them (meaning, it is supposed, to put them in prison) if they did not swear falsely, is really very difficult to comprehend when an appeal to the parents, the neighbours, and the police was quite open. There is here a want, as there was in the case of Lockyer v. Ferryman, and in the case of Forster v. Grigor or Forster, of any specification of the suggestions which the private detective made, or the time or place when he made them, and without such specification the averments are irrelevant.

Lastly, in regard to this matter of subornation, the pursuer charges Frederick Reid and his wife Mrs Reid as giving false evidence, which is just a reiteration of what was formerly maintained by her after her proof was led; and then comes this general averment—‘The pursuer further believes and avers that the said detective also visited these witnesses, and profiting by their animosity to the pursuer, induced them to give the said evidence against her.’ This vague and general averment is plainly irrelevant.

But not contented with the allegations of subornation the pursuer in this record goes over points of law which were decided by the Court. She complains that a motion made by her in the course of the proof to be allowed to lead additional evidence for the purpose of proving that Christina Ramsay Fairbairn had made a statement inconsistent with her evidence after that evidence had been given was refused. The judgment of the Court upon this point is reported ( Begg v. Begg, February 25, 1887, 14 R. 497), where it was held ‘that it is incompetent to recal a witness to be examined as to statements alleged to have been made by him since he was examined as a witness in contradiction of the evidence he then gave.’ The pursuer's point simply comes to this (if there be anything in it), that the Court gave an erroneous judgment on a point of law.

Then it is complained that the witness Miss Martha Somerville gave evidence which ‘was disregarded by the Lord Ordinary and the Court, on the ground that a lady friend of the pursuer and the said witness had written a letter to Miss Somerville prior to her examination as a witness which, it is believed, affected her evidence.’ The Lord Ordinary and the Court had a perfect right to disregard her evidence if they thought it was affected by the circumstance stated, but it is not correct to say that it was entirely disregarded by the Lord Ordinary and the Court, for the Lord Ordinary, at all events, founded upon Martha Somerville's evidence as a ground for disregarding that of Christina Ramsay Fairbairn.

It is also further averred that ‘the Lord Ordinary and the Court, in pronouncing the decrees sought to be reduced, proceeded upon the evidence of Donald Fraser, now an innkeeper, and formerly a sergeant of police at Portobello, who deponed that in the summer of 1883, i. e., from April till August, he often saw the pursuer and Mr Phelps together and alone and in suspicious circumstances and at untimely hours at and in the neighbourhood of Portobello. The fact is that the pursuer had never met or seen Mr Phelps prior to the month of October 1883, and that Mr Phelps had not been in Portobello until September of that year.’ Be it so. The Court had the right to give what weight they thought was justly due to the evidence of this witness. The Lord Ordinary who saw him, and heard him deliver his evidence, believed him to be an honest man, and in every way a credible witness, only he made a mistake as to the time, and this mistake the Lord Ordinary pointed out in his opinion. The pursuer has reproduced the circumstance once again. It was only a very small matter to which Fraser's evidence applied, and cannot in any way be said to have been material.

This case is therefore one that ought to be stopped at the outset. Instead of a final decree of the Court putting an end to strife it would, if such an action as this were entertained, be not the ending but the beginning of strife.”

The pursuer reclaimed.

The case was continued to allow her to amend her averments of subornation of perjury with the view of making them more specific.

Page: 83↓

The pursuer lodged proposed amendments, stating in full the evidence summarised in the affidavits above mentioned. She stated the particulars in which she alleged this evidence to be false and perjured, and averred that in each particular it, along with the evidence of a Mr and Mrs Reid, was procured by subornation of perjury on the part of the defender, or of his agent Alexander Macdonald, a private detective acting on his instructions, and who, she averred, was employed by the defender to get up the case against her, and was supplied by the defender with funds for that purpose.

When the case was again called, the pursuer argued—The averments were now relevant. They gave sufficient notice to the other side of what the pursuer intended to prove, and that was all she was called upon to do. The allegations need not be as specific as in a criminal indictment. The pursuer by these averments had gone further than merely making allegations that the evidence of certain witnesses was false; she had alleged that Macdonald, as an agent for the pursuer, had gone to certain persons and obtained false evidence by subornation of perjury. That was the element wanting in the case of Forster v. Grigor or Forster, January 21, 1871, 9 Macph. 448. The case of Lockyer v. Ferryman, quoted by the Lord Ordinary, could not be an authority, as that was an extreme case, brought thirty years after the alleged hints on which the reduction was sought.

The respondent argued—The averments were not relevant. The evidence of the witness Christina Fairbairn was not material, the Lord Ordinary and the Inner House having both disregarded it, and besides, at the previous trial an unsuccessful attempt had been made to show that her evidence was false. The evidence of Elizabeth Fairbairn was certainly not disregarded by the Judges, but there was sufficient evidence to warrant decree apart from it. It was not averred that the pursuer was personally cognisant of the actings of Macdonald, even if the averments as to the latter were sufficient— Lockyer v. Ferryman, June 28, 1876, 3 R. 882.

At advising—