Martin." Was this evidence against the heirs of Martin in an ejectment brought by them against persons claiming under Morris? It is not, Gibson says, because it was not delivered. It is like a bond or note found in the possession of the obligor. Hence (for this would be equally correct) the debit for a deposit on the Receiving Teller's scratcher, to be evidence in favor of the de positor, must have been delivered to him. Happily this stimulated search, and the deeds poll were found where the memorandum said they were, and the nefarious scheme was squelched. But was ever such a postu late selected? And what must have been the condition of a mind that was content to go to the public on such premises for such a conclusion? There is another case in which his dissenting opinion has been the accepted doctrine, and is likely to continue such. The consequences of this for evil can not be exaggerated. Borrekins v. Beavan, 3 Rawle, 23. It was accepted in Jennings v. Gratz, 3 Rawle, 168. The real question was, What is evidence of a warranty of quality, etc.? Because a description — or as lawyers call it, a representation — does not of neces sity constitute a warranty, or a contract, that the thing sold has a particular quality or char acter, therefore it is not evidence from which an intention to contract that the thing has that quality can possibly be inferred from a statement. This is the deduction. The ab solute dishonesty of permitting a dealer to make statements of facts on the faith of which a thing is bought, and of refusing even to consider whether he meant the purchaser to believe him, and whether the purchaser did and was thereby induced to believe him, does not seem to have weighed as the small dust in the balance as against a neat string of words, culminating in the sneer at the de cision that the written description of an arti cle by a tradesman can be any evidence that this is what he agreed to sell, and the pur chaser agreed to buy, or that words descrip tive of qualities of an article have any mean ing or force and effect in a contract of sale!
The astonishing thing, however, is that this eminent jurist did not know that the language of pleading and the language of evidence differ; and he actually supposed that because an averment of a representa tion was not an averment of a warranty, therefore a representation could not be evi dence of a warranty, and imagined that all the English decisions to the contrary were wrong. This outrage on common sense and common honesty may be said to have cul minated in the ruling in Frailey v. Bispham that the article described as superior sweetscented Kentucky leaf tobacco was de liverable and should be accepted if it was • tobacco, though it was not superior, nor sweet-scented, nor Kentucky, nor leaf, but stinking, and the worst tobacco ever seen in the Liverpool market. It is a curious fact that a Chief-Justice of Massachusetts made the same mistake as to what had been decided in Chandler v. Lopes, but declined accepting as law what led to such a dishonest result. The apparent absence of all thought as to what things and words mean in actual life among men having any self-respect, or of realizing that the object of the law is to compel men to do what they have agreed to do and what men have a right to under stand them to mean, and the substitution of elegant English phrases in place of this, is one of the characteristics, in my judgment, of the labors of this the most conspicuous of our Chief-Justices. There is but one more instance that shall be mentioned. It is impossible to give a better illustration of the absence of the sense of right and wrong as applied to hu man affairs, than occurs in the reasoning in the case I am about to cite. A general power to appoint, it is obvious, is the very reverse of a trust. A trust ex vi termini excludes all personal interest or benefit to be derived by the trustee. A power to appoint, if general, authorizes the application of the property to any persons whatever : the appointor may take it to the
