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collision and carriage and the cases of visitation to premises on which there is some hidden danger, cases far removed from the doctrine he enunciates. None the less this passage has been used as a tabula in naufragio for many litigants struggling in the seas of adverse authority. It cannot, however, be divorced from the fact that the case had nothing to do with the question of manufacture and sale. An unsound staging had been erected on premises to which there had been an invitation to the plaintiffs to enter and the case really depended on the duty of the owner of the premises to persons so invited. None the less it is clear that Lord Esher considered the cases of manufactured articles, for he examined Langridge v. Levy, and says that it does not negative the proposition that the case might have been supported on the ground of negligence.
In the same case, however, Cotton L.J., in whose judgment Bowen L.J. concurred, said that he was unwilling to concur with the Master of the Rolls in laying down unnecessarily the larger principle which he entertained inasmuch as there were many cases in which the principle was impliedly negatived.
He then referred to Langridge v. Levy, and stated that it was based upon fraudulent misrepresentation and had been so treated by Coleridge J. in Blackmore v. Bristol and Exeter Railway Co. (8 E. & B. 1035), and that in Collis v. Selden (2 M. & W. 519 and M. & W. 337) Willes J. had said that the judgment in Langridge v. Levy was based on the fraud of the Defendant. The Lord Justice then proceeded as follows: "This impliedly negatives the existence of the larger general principle which is relied on and the decisions in Collis v. Selden and in Langmeid v. Holliday (in each of which the plaintiff failed) are in my opinion at variance with the principle contended for. The case of George v. Skivington and especially what is said by Cleasby B. in giving judgment in that case seem to support the existence of the general principle. But it is not in terms laid down that any such principle exists and that case was decided by Cleasby B. on the ground that the negligence of the Defendant which was his own personal negligence was equivalent for the purposes of that action to fraud on which (as he said) the decision in Langridge v. Levy was based. In declining to concur in laying down the principle enunciated by the Master of the Rolls I in no way intimate any doubt as to the principle that anyone who leaves a dangerous instrument as a gun in such a way as to cause danger or who without due warning supplies to others for use an instrument or thing which to his knowledge from its construction or otherwise is in such a condition as to cause danger not necessarily incident to the use of such an instrument or thing is liable for injury caused to others by reason of his negligent act."
With the views expressed by Cotton L.J. I agree.
In Le Lievre v. Gould, 1893, 1 Q.B. 491, the mortgagees of the interest of a builder under a building agreement advanced money to him from time to time on the faith of certificates given by a surveyor that certain specified stages in the progress of the buildings had been reached. The surveyor was not appointed by the mortgagees and there was no contractual relationship between him and them. In consequence of the negligence of the surveyor the certificates contained untrue statements as to the progress of the buildings, but there was no fraud on his part. It was held that the surveyor owned no duty to the mortgagees to exercise care in giving his certificates and they could not maintain an action against him by reason of his negligence. In this case Lord Esher seems to have qualified to some extent what he said in Heaven v. Pender, for at p. 497 he says this: "But can the plaintiffs rely upon negligence in the absence of fraud? The question of liability for negligence cannot arise at all until it is established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence. What
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