I know the diction and syntax are outdated because I'm quoting from an English judge in 1885 namely Edgington v. Fitzmaurice (1885) 29 Ch D 459, Court of Appeal. But what exactly did Bowen LJ mean?

Was he writing that the state of digestion is a fact? Or that the state of digestion, like the state of a man’s mind, "is very difficult to prove [...], but if it can be ascertained it is as much a fact as anything else."

Any physicians here? Can a gastroenterologist pinpoint someone's state of digestion precisely?

Bowen LJ

This is an action for deceit, in which the Plaintiff complains that he was induced to take certain debentures by the misrepresentations of the Defendants, and that he sustained damage thereby . . .
      The alleged misrepresentations were three [he considered the first two misrepresentations and concluded that there was insufficient proof that the misrepresentations had been made fraudulently and continued]
      But when we come to the third alleged misstatement I feel that the Plaintiff’s case is made out. I mean the statement of the objects for which the money was to be raised. These were stated to be to complete the alterations and additions to the buildings, to purchase horses and vans, and to develop the supply of fish. A mere suggestion of possible purposes to which a portion of the money might be applied would not have formed a basis for an action of deceit. There must be a misstatement of an existing fact: but the state of a man’s mind is as much a fact as the state of his digestion. It is true that it is very difficult to prove what the state of a man’s mind at a particular time is, but if it can be ascertained it is as much a fact as anything else. A misrepresentation as to the state of a man’s mind is, therefore, a misstatement of fact. Having applied as careful consideration to the evidence as I could, I have reluctantly come to the conclusion that the true objects of the Defendants in raising the money were not those stated in the circular . . .

Ewan McKendrick. Contract Law: Text, Cases, and Materials (2020 9 ed). p 565.

  • The judge said that the state of a person's digestion is a fact which can be easily discovered. He said that equally the state of that person's mind is a fact, although not so easily discovered. What was in the defendants' minds (their purpose in raising the money) was a fact capable of being lied about by them. Mar 23 at 7:03

The writer is taking as a starting point that we all agree that the state of a man's digestion is a fact. He is not trying to prove that or convince us that that is true. He takes that as a given.

His argument is that the state of a man's mind is also a fact, just as the state of a man's digestion is a fact. That is, if someone questioned whether a man had, say, recently eaten fish, a doctor could determine that by studying the contents of his stomach. In the context of a court case, if it was important to the case whether the defendant had eaten fish, then a prompt enough medical examination could determine that and evidence about this medical examination would be valid evidence to introduce in court.

In the same way, he says, what a man was thinking at a certain time is also a fact. In the case at question, the judge is saying that the motives of the defendant in this case when he printed a circular trying to raise money are facts. Was he really trying to raise money to start this business? Or was it ... your excerpt doesn't include the allegations, but from context it appears that the plaintiffs were claiming it was not a legitimate effort to raise money to start a business but was some sort of scam. The judge says that the defendant's motives in producing the flyer are extremely relevant to the case, and that whether he was planning to start a legitimate business or whether he was planning to con people out of their money is a fact. The question before the court, then is to discover what the actual fact is, that is, what was really in his head. Of course there's no medical examination that would determine what was in his head like we might determine what was in his stomach, but there is other evidence the court can look at to figure it out.

So short story, he's saying, Just as what is in a man's stomach is a fact, so what is in a man's head is a fact. It may be hard to determine what is in his head, but that doesn't make it any less a fact.


The crucial issue here is that both the mind and the digestive apparatus are concealed from view. By contrast, say, the state of a man's hair would be open to view. Hence Bowen LJ is talking about two things which are similar. Most people would agree that by sufficient investigation you could determine what is going on in the digestive system, it is a fact. However people may doubt that thoughts are real, for some meaning of real. Bowen LJ concluded that this was not true and that they are real even if hard to determine. Hence he was entitled to find on the evidence what the defendants thought and what their true intentions were.

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