Page:Harvard Law Review Volume 1.djvu/199



R. BIGELOW, in the preface to his “Law of Fraud,” says : "What shall be said of a treatise on the law of fraud which makes no mention of Chandelor v. Lopus? . . . The truth is, Chandelor v. Lopus — and this case is taken as an illustration of a class that has had its day — was one of the few decisions upon an important point.” The case, he says, was imperfectly reported.

It is certainly surprising how frequently in the United States this case has been misunderstood, and that by men in the highest position it has been assumed to decide a point that was not in the case, and could by no possibility have been there decided. On the one side, the supposed decision which absolutely shocks all sense of common honesty has been accepted, gloried in, and adhered to. On the other, the grossness of the fraud involved in and sanctioned by the supposed decision caused its rejection, and by a true judicial instinct the annunciation of a rule which really is the true one on the subject to which the case belongs, if not implicitly contained in the case. The same misfortune has occurred with another case, — Pordage v. Cole. There, even English judges have been misled, — a thing perhaps impossible but for the fading away of the knowledge of the art of pleading, which was the only thing involved in either case, — and, until Lord Bramwell pointed it out, nobody seems to have noticed or ventured to assert that this was all that was decided; while with many — not all — both these cases have been persistently treated as deciding great questions on the law of contract, and fraud connected with contract, when, in fact, a point of pleading only was decided; and one of those was wrong, as every form-book proves.

Singularly enough both cases are admirable texts for dissertations on the most important practical questions of every-day commercial life, while neither decided anything that can really be called important, and one of them, as I have said, was certainly wrong.

It so happens that both cases were decided on identical similar points: one on demurrer; the other in error on a motion in arrest of judgment, — which raises the same points as a general demurrer, that is, objections that are substantial and not merely