Page:Harvard Law Review Volume 1.djvu/202

  law as can be produced at this day; and which, as a point of law, must last as long as a claim or a defence must be stated. For it really decides two things. One is a rule of pleading, which in modern times is thus stated, — that things must be stated according to their legal effect. Evidence cannot be stated either in declaration or plea, because the issue would be confined to the existence of that evidence, and its effect would be an immaterial matter. The other point decided is that a mere statement, unless it was made as a contract or was made fraudulently, is immaterial, and if either of these is relied on they must be pleaded accordingly. The unhappy result of the misapprehension, that because an untrue statement of a fact did not, without more, necessarily show a state of facts on which liability was a necessary consequence, therefore it could not be evidence to establish a liability, is exhibited in Boyd v. Wilson, 3 Weekly Notes of Cases, 521, where it was decided that a sale by sample does not create a contractual liability if the bulk is not similar to the sample. Nothing can be a more logical deduction; but the absurdity of the result should have induced a suspicion that the fallacy lay in the premises. If statements of facts, even such as they were in Chandelor v. Lopus, and between parties holding the relative positions as in that case, are not evidence to authorize an inference of an intent to warrant, how can acts or conduct be so? And what do I add to my statement as to quality by producing a sample? There is no reason to suspect intentional deceit in either case. That a statement is untrue goes but a little way to prove lying. For one fact we know there are a million we assume we know, and yet know nothing in that sense that makes an untrue statement a lie. The merchant that shows a sample relies on a drawer of the sample, and he on a deputy, and he on the laborer that brings out the lot from which it is to be drawn.

The liability to make the statement good, if it is not true, is sufficient, for all practical purposes, to insure efforts to make it true. Under the Pennsylvania rule commerce could not exist. Probably no one engaged in commerce, properly so called, would dare invoke the rule. He would be driven from the haunts of men, — at least expelled from the Commercial Exchange.

In justice to the bar of the State it ought to be stated that this distinction between the language of pleading and that of evidence, and that this assumption in Borrekens v. Bevan was without