A Century of English Judicature. A CENTURY OF
573
ENGLISH JUDICATURE.
X. BY VAN V ECHTEN VEEDER. WHEN Brett (better known by his subse quent title, Lord Esher) was made one of the first judges of the Court of Appeal he had already served an apprenticeship of eight years as a judge of the Court of Common Pleas. Being further pro moted to the post of Master of the Rolls in 1883, he served until 1897, thus com pleting a continuous service of thirty years. Unfortunately for his reputation he clung to office so long after age had impaired his usefulness that he was often spoken of by his contemporaries with reproach. But no one who has examined with any care the total result of his long service will be apt to overlook its great value. That he was a learned lawyer, particularly in the domain of commercial law, cannot be gainsaid; shortly after his accession to the bench we find the learned Willes adopting and complimenting the opinion of his young associate. Gray v. Carr, 6 Q. B. 554. Still it was rather, like Bramwell.as an invigorating general influence for good that his services were of most value. He resembled Bramwell, too, in an ingrained aptitude for logic; but he seldom became a slave to his logic. He was, however, apt to reach beyond established authorities and the particular facts of individual cases for broad, general principles and logical symmetry. For instance, in the case of Heaven i'. Pender, 11 Q. B. D. 503, where the majority of the court held a ship owner liable for damages sus tained by the employee of a ship painter, who was injured on a defective scaffold furnished by the ship owner, in accordance with the well known doctrine of invitation, the Master of the Rolls set for himself the task of solving the large problem, "What is the proper definition of the relation between two per sons other than the relation established by contract or fraud, which imposes on one of
them a duty toward the other to observe, with regard to the person or property of such other, such ordinary care or skill as may be necessary to prevent injury to his person or property?" His highly interesting argument is in substance as follows: "When two drivers or two ships are ap proaching each other, such a relation arises between them when they are approaching each other in such a manner that, unless they use ordinary care and skill to avoid it, there will be danger of a collision between them. This relation is established between them whether they know and think of the danger or not, because anyone of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill under such circumstances there would be danger. According to the universally recognized rules of right and wrong everyone ought to think so much with regard to the safety of others who may be jeopardized by his conduct; and if, under such circumstances, he does not think, and in consequence neglects, or fails to use ordinary care and skill, and injury ensue, the law holds him liable. In the case of a common carrier the law implies the duty; with regard to the condition in which the owner or occupier of premises leaves his shop or warehouse, other phraseology has been used; it is said that his constructive invitation to customers raises the relation between them which imposes on the inviter the duty of using reasonable care to so keep the premises that the person invited may not be endangered. This is in a sense an accurate phrase. Yet you do not really invite; you merely intimate that if it pleases a customer to come in you are ready to sell. It is also said that you impose on yourself a duty not to lay a trap for the customer. This, again, is not a strictly accurate statement of
