1846.

M'MAHON V.
BURCHELL.

such admission was to be pleaded. If the mere fact that such an admission was made was sufficient, it did not meet the mischief, to guard against which, the rule was said to have been established, that was to say, surprise on the opposite party. Again, if it was said the party must state not merely the admission but also the time and circumstances connected with the admission, it seemed to him that there was not to be found any case going that length; though he doubted not that a prudent pleader, who relied much upon such an admission, would adopt that course, to avoid the possibility of such evidence being weakened by an allegation of surprise (a). That in the case upon which he was observing, the objection was, that fraud had not been distinctly putin issue; but it was not mentioned in the report whether facts were stated from whence the charge of fraud could be collected, nor indeed did it appear how fraud was charged, or how admitted. There was no statement in the report upon those most important points-important he said, inasmuch as the mere assertion and admission of fraud, as a general statement, would be utterly valueless on those grounds, as well as on the ground that Sir Anthony Hart said at the conclusion, by rejecting the evidence he did the parties no injury, as even were it admitted he could not make a decree without sending it to law. That he could not consider this expression of the opinion of that highly respectable judge as an authority, which would justify him in departing from the course, which had been previously followed in that Court.

As Lord Plunkett, in observing upon Blacker v. Phepoe, and Fitzgerald v. O'Flaherty, ante, pages 487, 488, says, that the expressions there attributed to Sir Anthony Hart are mere dicta, and that in a point of this kind no dependence can be properly

herty, ante, page 488. It is a ge-
neral rule that not only parol ad-
missions of conclusions of law,
but also parol confessions of
facts, must be put in issue. Do-
cumentary evidence of admissions
of conclusions of law must be put
in issue. Documentary evidence of
acknowledgments and confessions
of facts need not be put in issue,
the facts themselves being in
issue. See Lord Donegall v.

Whaley, post, page 494.

(a) In a subsequent part of the same judgment, Lord Plunkett said he had thrown out his opinion as to the course which he considered that a prudent pleader ought to take; for though the evidence might be admitted, still the Court, if it had any reason to suppose it a surprise upon the party, would pay but little attention to it.

placed on the dictum of any judge (a), it is not immaterial that 1846. the reader should be informed, that all the foregoing remarks of MMAHON V. Lord Plunkett himself upon Mulholland v. Hendrick, as well as his BURCHELL. Lordship's remark upon Hall v. Maltby, ante, page 485, Blacker

v. Phepoe, ante, page 487, Fitzgerald v. O'Flaherty, ante, page
489, and Farrel v. -, post, page 494, are merely dicta, as
the ensuing extract from the report of the case of Garrett v.
Lord Besborough, 2 Drury & Walsh, 453, in which the remarks
occur, will show. The object of the suit was for the specific per-
formance of an agreement for a lease. Lord Plunkett in his
judgment states, that during the progress of the cause, evidence
of a person to prove an admission by the plaintiff of his having
refused to execute the lease, and of his in fact having repudiated
the contract, was tendered by the defendant, but objected to on the
part of the plaintiff; and a question was raised to its admissi-
bility, on the ground that, being an admission by the plaintiff, it
should have been distinctly put in issue by the defendant's
answer. Now it was true that the admission was not put in
issue; but the fact of the plaintiff having refused to execute the
lease was not only put in issue, but relied upon as one of the
main grounds of defence. Upon this objection Lord Plunkett
said he was not, however, obliged to decide, as there were other
circumstances in the case, which without its aid enabled him to
refuse the relief prayed. Were he called upon to decide a point
of so much importance, he should require it to be re-argued. As
however, the point had been a good deal discussed, he should,
without pronouncing any decision upon the case immediately
before him, advert to the cases which had been cited, and state
what had suggested itself to his mind, after a very careful perusal
of them. Lord Plunkett concludes his remarks, which fill between
four and five pages, by stating that he was not, however, called
upon in the case before him to make any
decision.

,

In Farrel v. 1 Moll. 363, evidence was offered to be read of a witness deposing to conversations with the defendant, in which he acknowledged that he had defrauded the plaintiff. The fact of the admission in the conversations with the witness was not put in issue by the bill. Sir Anthony Hart said, he rejected the evidence of such alleged conversations with a party when not put in issue; no man would be safe if he could be

V.

(a) In remarking upon Farrel

–, post, page 494. Lord Plunkett also says that the ob

servations of Sir Anthony Hart
towards the end of the judgment
are merely dicta.

Evidence of

conversations

with the defendant acknowledging that he had defrauded the plaintiff rejected, the same not being put in issue by the

bill.

1846.

M'MAHON V.
BURCHELL.

Deposition relating to admission of gambling transactions, and that fact [the ad

affected by such evidence. Lord Talbot said long ago that if you were to oust a defendant by fraud alleged against him, and the fraud was proved by the acknowledgment of the defendant that he had no right to the matter in litigation, the plaintiff must charge that on the record, to give him the opportunity to deny or to explain and avoid it (a); and it was common reason; for if a stranger was admitted to swear to a conversation between him and the defendant, and no opportunity was given to the defendant to deny that any such occurrence passed, no man would be safe. The evidence was rejected (b).

Lord Plunkett has said, 2 Dru. & Wal. 456, that in Farrel v. the evidence was admitted, and that the observations of Sir Anthony Hart towards the end of the judgment were, therefore, merely dicta, and were generally applicable to all cases of admissions, and, if correct, applied only to cases where the admission was used, not as evidence of a fact, but as being itself a fact governing the case, and therefore the doctrine, whatever it might be, had no application to the case before him.

It will be seen that the evidence in Farrel v.

of being admitted, as Lord Plunkett states, was rejected.

instead

In Donegall v. Whaley, 2 Moll. 397, where the deposition related to the admission by the plaintiff at law of gambling transactions as the foundation of the plaintiff's demand, and that fact was not set out upon the pleadings, an issue was refused to try mission] not being set out upon the pleading, issue refused to try whether such conversations [such admission] took place.

Depositions touching declarations [that securities were given for money lost at play] rejected, the general fact [of gambling] being in issue, but not the distinct fact of confession [the distinct fact of the declarations].

It is a general rule that not only parol admissions of conclusions of law, but also parol confessions of facts, must be put in issue.

Documentary evidence of acknowledgments and confessions [of facts need not be put in issue, the facts themselves being in issue].

Documentary evidence of admissions of conclusions of law must be put in issue.*

The two last placita are, it is apprehended, a correct representation of the rule stated, or meant to be stated, in the concluding part of the judgment.

(a) The case, to which Sir Anthony Hart here refers, is unknown to the writer. There can be no doubt, however, that the Chancellor who determined Sidney v. Sidney (post, page 514, in the note), would have held that if fraud was to be proved by the acknowledg ment of a party that he had no

right to the matter in litigation, such acknowledgment must be stated upon the record, so as to give that party an opportunity of denial or explanation.

(b) With reference to the sense in which the word "rejected" must often be understood, see "Conclusion 2," post, page 509.

1846.

M'MAHON V.

whether such conversations really took place; and Lord Chancellor Hart said that the rule was not a technical rule, but of the essence of justice. In that case the witness deposed that he had often BURCHELL. heard the defendant in equity acknowledge that the securities given by the plaintiff (who filed this bill to restrain proceedings at law upon them) were given for sums of money lost at play. It was objected that the defendant was not apprised by the pleadings, that the fact of admission was about to be deposed to. The fact of gambling was in issue, and the bill went on that ground of impeachment. Lord Chancellor Hart held that declarations by a party must be put in issue that he may have the opportunity of cross-examining the witness to the particular circumstances; and he rejected the depositions touching declarations—the general fact being in issue, but not the distinct fact of confession of the factas not being evidence, because it was not specifically put in issue by the bill that such declarations were made; and he said, that a party must have an opportunity to cross-examine a witness deposing to his admissions, with notice by the pleadings of what he deposes to; and that even a discredited defendant might defeat the effect of it if he had notice; because he might show by the context-the persons, place, time-that no such conversation ever took place; and he added, it is said sometimes in favour of receiving such evidence that, although the adversary had no opportunity to avoid it, the Court can direct an inquiry; but he would not direct it; and he said there may result some injury to the plaintiff by rejecting this evidence; but it was in his power to have prevented it; for the framer of the bill might easily, after having charged the fact of gambling, have stated as evidence of the fact the further fact, that defendant had confessed it to such a one, at such a place and time; then the evidence of the fact of the confession would have been admissible. And Lord Chancellor Hart said if such depositions were admitted to have any effect, it would be easy to get persons, who had never seen the party, to swear to conversations, in which he divested himself of his rights, and so put him out of all chance of justice. This rule is general with respect to parol evidence of confessions of facts, and is not confined, as is said in some of the cases, to the case of admissions of conclusions of law, as the rule with respect to documentary evidence of acknowledgments and confessions (a).

(a) It may be convenient to state, that the foregoing case

reprinted verbatim from Mr. Molloy's report.

1846.

M'MAHON V. BURCHELL. Letters and writings of a party may be used as evidence of facts, although such letters and writings are not

mentioned in the pleadings. Letters and writings of a party may not be used as evidence of naked admissions,

without more, to ground a de

cree, without being mentioned in the pleadings.

Sir Anthony Hart said to have held in many cases, that parol evidence of admissions must be absolutely rejected if not put in issue.

Houlditch v. Lord Donegall, 1 Moll. 364, before Sir Anthony Hart, will be found to furnish the two following placita. Letters and writings of a party may be used as evidence of facts although such letters and writings are not mentioned in the pleadings. Letters and writings of a party may not be used as evidence of naked admissions, without more, to ground a decree, without being mentioned in the pleadings.

It is said, 2 Molloy, 396, that Lord Chancellor Hart held in many cases that parol evidence of admissions must be absolutely rejected if not put in issue; not merely generally, but the particulars attending the fact of the admission, where, when, and to whom, must be set out, or some other description equally pointed to give the party notice; the strictness of the rule in that case being intended to give the party to be charged the opportunity, not only of explaining the fact, but of discrediting the witness. It is added that if parol evidence of admissions and confessions not put in issue is tendered, no decree will be made upon it or notice taken of it, even to the extent of directing further inquiry.

As there remain no more of Sir Anthony Hart's decisions upon the present subject it will be convenient here to notice some conclusions which Mr. Molloy draws from them.

1. That an acknowledgment in writing by a party of moral turpitude or fraud in the transaction, which is the subject of the suit, must be put in issue.

2. That a written acknowledgment of the conclusion of law only, finally determining the question in the suit, must be put in issue.

These two conclusions are correct enough.

3. That if the confession in writing be of an act which may be innocent, or was capable of extrinsic proof, but which, taken in combination with the other facts, is alleged to be an ingredient in constituting fraud, although parol evidence of it would be rejected if the fact of the admission was not put in issue, the writing would be admissible without the fact of such written acknowledgment being put in issue.

The writing in this and in all similar cases is admissible in evidence; but the Court would not make it the foundation of any decree or order, without giving the party to be affected an opportunity of explaining the writing.

4. That the parol evidence of admissions of facts generally if not put in issue is entirely inadmissible, even to the extent of being ground for inquiry. That the not putting the parol admission in issue, deprives it of the character of evidence.