Page:Harvard Law Review Volume 10.djvu/383

357 LORD BOWEN'S JUDICIAL CHARACTERISTICS. 357 to eliminate with dexterity all superfluous and irrelevant cir- cumstances, to break up complex questions into their simple components, and to narrow the controversy to an issue. Many illustrations might be given of his subtlety in clearing the ground by going straight to the pith of a case, and placing his premises beyond misconception by careful and accurate definition of terms in which there was any possibility of ambiguity.^ After the precise issue was found he was also always careful not to go beyond it. A notable example of this is the case of Davies V. Davies,^ where he declined to discuss the subject of restraint of trade because the matter was not directly in issue. A good exam- ple of his acuteness in summarizing the exact ground of his decision may be found in a subsequent case involving that issue : — " The^rule as to general restraint of trade ought not, in my judgment, to apply where a trader or manufacturer finds it necessary, for the advan- tageous transfer of the good will of a business in which he is so interested, and for the adequate protection of those who buy it, to covenant that he 1 In the case of Mogul Steamship Co. v. McGregor, 23 Q. B. D. 611, involving the legality of a combination to control trade, he said : — " We were invited by the plaintiffs' counsel to accept the position from which their argument started, — that an action will lie if a man maliciously and wrongfully con- ducts himself so as to injure another in that other's trade. Obscurity resides in the language used to state this proposition. The terms 'maliciously' and 'wrongfully' and 'injure' are words all of which have accurate meanings well known to the law, but which have also a popular and less precise signification, into which it is necessary to see that the arguments do not imperceptibly slide. An intent to 'injure ' in strict- ness means more than an intent to harm. It connotes an intent to do wrongful harm ; ' maliciously,' in like manner, means and implies an intention to do an act which is wrongful, to the detriment of another. The term * wrongful ' imports in its turn the infringement of some right. The ambiguous proposition to which we were invited by the plaintiffs' counsel still, therefore, leaves unsolved the question of what, as between the plaintiffs and defendants, are the rights of trade. For the purpose of clearness I desire, as far as possible, to avoid terms in their popular use so slippery, and to trans- late them into less fallacious language wherever possible." See also his opinion delivered before the House of Lords in the great case of Dalton V. Angus, 6 App. Cas. 779. Other illustrations of his habit of accurate definition are his distinction between the defences of contributory negligence and a defence resting on the maxim volenti non fit ittjuria, Thomas v. Quartermaine, 18 Q. B. D. 691 ; his remarks on the use of the term "special damage," RatcHffe v. Evans, [1892] 2 Q. B. 524 ; on the confusion arising from treating cases of dismissal of servants by a master as instances of a rescission of the original contract, Boston Deep Sea Co. v. Ansell, 39 Ch. D. 365; on the distinction between an act and its consequences, Harrison v. Muncaster, [1891] 2 Q. B. 687; on the incorrect practise of speaking of the right to light as an ordinary easement, Birmingham Banking Co. v. Ross, 38 Ch. D. 312; on the vague use of the term " adoption," Falcke v. Scottish Insurance Co., 34 Ch. D. 249. 2 36 Ch. D. 359. New YORK