Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/793

 20. VEEDER: A CENTURY OF JUDICATURE 779 tions, and his plain directness of speech sometimes shocked sensitive people. In the fearless discharge of his judicial functions he was never subservient to public opinion. Some observations in a charge having met with applause, he paused and then said quietly, " I recall those words — I must have been saying something foolish." Bramwell received his legal training in the strictest school of special pleading, and was familiar with all its mysteries. But he was not, like Parke, blind to the defects of the system. " I think, " he said, " that some twenty or thirty years hence, when the present generation of lawyers has ceased to exist, it will scarcely be believed that such a state of things did ex- ist in a civilized country." Consequently, when public opin- ion was ripe for a change, Bramwell was chosen for the task. It was conceded that Bramwell and Willes did most of the work. The final overthrow of the old system by the Judica- ture Acts received his cordial support. He occasionally showed the effect of overtraining in the dialectic of special pleading in his fondness for framing di- lemmas (see his opinion in the Bernina case, 13 App. Cas. 11) and, more rarely, in the maintenance of metaphysical positions somewhat removed from common sense. One of the most conspicuous instances of this susceptibility to scho- lastic logic was his contention that an action for malicious prosecution will not lie against a corporation (Abrath v. North Eastern Ry., 11 App. Cas. 247). A corporation, he maintained, is incapable of malice or motive; if the stock- holders direct a malicious prosecution they are personally liable, while such action by the directors would be ultra vires.^ Another characteristic perversion was his application of the maxim volenti non fit injuria. " It is a rule of good sense," he said in Smith v. Baker, (1891) A. C. 325, " that if a man voluntarily undertakes a risk for a reward which is adequate to induce him, lie shall not, if be suffers from the risk, have a compensation for which he did not stipulate. He can, if he chooses, say, * I will undertake the risk for so much, and lessee whose assiprnee has become bankrupt and disclaimed the case. Smyth V. North, 7 Ex. D. 250.
 * Observe, also, his position on the liability for rent of an original