1846. M'MAHON V. received, as the conversations to which he spoke were not properly put in issue by the bill. Lord Cottenham said, that the bill alleged that prior to the sale the plaintiff desired the defendant to attend, and bid and buy for him. This the defendant positively denied. That one witness, Sinclair, proved it, and proved it in this way. That after the sale, or at the time of the sale, the defendant made an arrangement with the sheriff, and afterwards stated that he had bid for the plaintiff, and that the plaintiff was the purchaser, and that he had bid for him, and was his agent in the purchase. Now the bill charged that the defendant had admitted that he had purchased for his client, the plaintiff; but it did not charge that he had said so to a witness of the name of Sinclair. That if the bill had charged that the defendant had said so to Sinclair, the defendant would have had an opportunity of cross-examining Sinclair, or of examining other persons who were present at the time, if any person could be found who would dispute the statement which Sinclair made upon the subject. But as the bill only set out as a general allegation that the defendant often said so, without referring to any one instance in particular, the defendant of course had no possible means of meeting the case made upon the evidence. He had had frequent occasion in that House and elsewhere to state that where he found evidence of an admission, and that admission was not put directly in issue by the pleadings, so that the party against whom it was intended to be used had no opportunity of meeting it by other evidence, it would be a most unjust thing to bind the interests of the party by an admission so proved, and it would be a way of giving facility for producing false evidence, and be very dangerous and injurious to the general interests of suitors. A defendant charged with keeping certain papers, and with wilfully suppressing them Small v. Attwood, called in the House of Lords [from the principal defendant being the appellant, and the plaintiffs the respondents], Attwood v. Small, 6 Cl. & F. 232.-It is quite unnecessary to give any abstract of this well known and memorable case. when he brings The ensuing extracts from the judgments of Lords Brougham and forward another Cottenham sufficiently show the absence of specific allegations paper, has a right to have his attention specifically directed [by the bill] to that charge, that he may know how to meet it; that he may know what to produce, and above all things that he may in his answer give a full explanation if he can. The rules of pleading and proceeding in Courts of Equity require such specification, as shall enable a party charged with fraud to meet the charge by denial, or by admission, or by explanation, or by confessing and avoiding, or by giving the residue of the conversation, a parcel of which only you think fit to put upon your bill. and charges in the bill, and the sort of evidence, documentary and 1846. parol, upon which, notwithstanding the defect of pleading, the MMAHON V. Court below had proceeded. For the appellant it was said that inadmissible evidence was read at the hearing of the cause in respect of material facts and declarations that were not put in issue by the pleadings, so that the appellant had not any notice of them, and, therefore, was not in a condition to contradict or explain them. All evidence of that nature should have been rejected. All material facts, declarations, and admissions should have been put in issue properly, and technically, with the name of the witness, the time when, and the place where such declarations or admissions were made, so that the appellant might have been able to deny or explain them. For the respondents it was said in answer to the objection. taken for the appellant on the law and practice applicable to his case, viz. that facts and statements were given in evidence which were not properly put in issue, that it was the constant practice in actions at law to give evidence of facts, and of admissions, though no notice was given of them by the pleadings, and the courts of law used their discretion whether they would grant a new trial even in cases of surprise. Courts of equity had a discretion, also, whether they would not put the matter in a train of further inquiry. In neither jurisdiction was the evidence stated in the pleadings. There was an exception to the general rule when a party had admitted that he had done an act with a fraudulent intention, which was a conclusion of law; the evidence of that admission could not be received against him without charging it in the pleadings. But it was never held that one might not give the facts in evidence without charging them, leaving the Court to draw its own conclusion. Lord Brougham said it was urged that stock papers were in existence and were kept back. Now it was a distinct charge, a distinct statement of fraud, to say that the appellant was in possession of stock papers, which would have falsified the story he told to the company, and upon which story they were contracting with him; but that he wilfully and in order to prevent his story from being falsified and his falsehood from being discovered, kept back those papers, and gave them other papers to look at, selecting those to be kept back, which would have detected his untruth, selecting those to be put forward, which would support his own untruth. That was as distinct a statement of fraud as he conceived could be made by any party in a court of equity against any other. But had ever any man seen any bill in equity which— BURCHELL. 1846. MCMAHON V. instead of giving in that statement which charged general fraud upon that point, (even in the charging part of the bill put in the performance of its proper office,) any one indication of what those papers were which the charge was that the defendant was keeping back-shrouded itself, instead of coming to the particulars, in that vague general statement, "and then the complainants further charge that the said defendant had in his possession," not stock papers made to show a yield account, and which would have called the appellant's attention to the point, but "various papers, books, documents, &c." Nothing of stock papers mentioned from the beginning to the end. Accordingly, as was the bill so was the answer, a general denial of course with an offer to produce all the appellant had. But that was not all. In the spring after the bill was filed a letter was written by the solicitor of the company to the appellant or his solicitor, distinctly stating that the stock papers had been in existence. That showed that their attention was called to the stock papers, and that they were preparing a case upon them. The bill was amended, but the amended bill was in this part of it precisely the same as the original bill; it was just as vague and general; "all books, books of accounts, copies of letters, extracts of letters, receipts, memoranda, papers and writings;" not one word about stock papers. The appellant had a right to know what was the charge of fraud that was made against him, and which he had to meet. He was charged with keeping stock papers, from which a yield account might be made, and with wilfully suppressing them when he brought forward another paper. He had a right, therefore, to have his attention specially directed to that charge [by the bill] that he might know what to produce, and above all things that he might in his answer give a full explanation if he could. No such notice was given, no such opportunity for explanation was afforded to him, no such specification of particulars as to let him know what it was that they would have him account for, explain, and answer. That was not the only part of the case which was deficient in specification. There was general fraudulent conduct imputed to the appellant when the deputation was down; for instance, that Edwards said, "I have had my drilling before these gentlemen to-day, it is your turn next." By drilling" was meant, not drilling of the appellant to prepare them to be examined, because that did not apply; he meant he had been sifted, he had gone through the ordeal of those gentlemen, it was his turn next. Another fact stated was that James or Edwards came into the room and said, "A set of d--d old fools," meaning the deputies. A third was, "and the most material of 66 1846. the whole, that appellant said, "Go out to them and say if they don't complete the contract I have got somebody who is ready to MMAHON do it and pay for it;" which would have been a very serious BURCHELL. thing, only that it was totally beside the question, unless it was shown that appellant having said that to the man, the man went and told the deputation, which was not pretended. All this was general charge of fraudulent conduct more or less connected with the transaction. But he could not find from the beginning to the end of the bill one single charge upon that subject. That was not the way to put a party upon his defence on a charge of fraud. You must charge fraud specifically and in detail, you must give him the opportunity of knowing what charge he has to meet. You must give him the opportunity of explanation, because the words imputed might not have been used at all, or he might have satisfactorily explained them in a way, which would give them an innocent aspect. The rules of pleading and proceeding in courts of equity required such specification as should enable a party so charged to meet the charge by denial, or by admission, or by explanation, or by confessing and avoiding, or by giving the residue of the conversation, a parcel of which only you thought fit to put upon your bill. But that was not the course pursued by the respondents. Lord Cottenham said that a noble and learned lord, after observing on the question of yield and stock papers, said that although he considered that a material part of the case he, Lord Cottenham, had not adverted to it, or but very slightly touched upon it. It was perfectly true he had not. He was only anxious to state the reason why he had not. The propositions arising from those facts were these.-An imputation of fraud was made against the appellant, because when the deputation went down he produced books of the year 1818. Other more recent information was called for, and he was represented to have said that there were no yield books subsequent to 1818. The allegation was that he, appellant, had in his possession certain stock papers, which stock papers, although they would not of themselves show the yield, would have been an item in the calculation in order to ascertain the yield-that he knew those yield papers would show a yield different and less favourable than what it was in 1818, and that knowing that, he purposely and fraudulently suppressed that information. When the cause was argued at their Lordships' bar it was observed by the counsel for the appellant that there was no such case upon the record. He very carefully ooked at it at the time, he had very carefully looked at it since, LL 1846. M MAHON V. and he found that the observation was perfectly well-founded, that the bill did not state any such case. If the bill stated no such case, particularly where the attempt was to fix fraud, according to the rules of a court of equity you could not permit the party to go into evidence for the purpose of proving it; and you could not infer anything from the circumstance of the defendant in such a bill not having produced evidence to repel such an imputation, no such imputation being made upon the bill. That was the reason why he threw it out of the case. He considered that in so doing, he was acting upon the perfectly well ascertained rules of a court of equity. Court lays aside all evidence of declarations and admissions not stated in the pleadings. In Copland v. Toulmin, 7 Clark and Finn. 349, S. C. West, 165, there was a question as to the shares which the appellant and respondent took in a certain partnership. Upon the hearing of the cause it seems to have been objected, that depositions had been read of admissions and declarations of the appellant and respondent upon this subject such declarations and admissions not being stated in the bill and answers. Lord Cottenham, in pronouncing the judgment of the House of Lords said, he laid aside all evidence of declarations and admissions imputed to the appellant and respondent which were not stated in the pleadings, and which there was not therefore any opportunity of explaining or disproving. Lord Plunkett inclined to say that in a case charging fraud, where the declarations of fraud are the gist of the case, evidence of such declarations, where they are not charged by the bill, ought not to be admitted; but convinced that it is, generally speaking, un In Garrett v. Lord Besborough, 2 Dru. & Wal. 457, Lord Plunkett,-after stating he was inclined to say that in a case charging fraud, where the declarations of fraud are the gist of the case, evidence of such declarations, where they are not charged by the bill, ought not to be admitted-added that he was convinced that it was generally speaking unwise of a court of equity to fetter itself by adopting an unbending rule; he should say that the ends of justice would be better answered by leaving each case to stand on its own ground, subject to the sound discretion of the court. The immediately succeeding observations of Lord Plunkett are printed before, page 497. wise of the Court to fetter itself by adopting an unbending rule. |