Page:Harvard Law Review Volume 10.djvu/389

363 LORD BOWEN'S JUDICIAL CHARACTERISTICS. 363 As models of systematic logic nothing could be more admirable than his opinion in RatclifFe v. Evans/ on the basis of the action for malicious falsehood ; and his opinion in Quartz Hill Gold Min- ing Co. V. Eyre,^ as to the circumstances under which an action will lie for the malicious prosecution of a civil action. See also his brief but masterly solution of the issue in British Mutual Bank- ing Co. V. Charnwood Forest Ry. Co.^ These opinions must necessarily be read in their entirety to be appreciated. His subtlety in the analysis of legal doctrine may be seen to best advantage in Le Lievre v. Gould,^ and Angus v, Clifford,^ where he reviewed the reasoning of the great case of Peek v. Derry,^ which settled the foundations of the action of deceit. What could be clearer, to give a single quotation, than his statement, in Badeley v. Consolidated Bank,^ of the way in which the lower court had gone wrong on an issue of partnership : — " To my mind, the true test of partnership has been settled by the House of Lords, and by court after court, in a way which leaves it no longer open to discussion. The real test is that which is decided by a catena of cases beginning with Cox v. Hickman,^ and ending, I hope, with this case, though I am not sure of that. The question is whether there is a joint business, or whether the parties are carrying on business as principals and agents for each other. Now where has Mr. Justice Stirling gone wrong? He has gone wrong because he has not followed that test. What he has done is this. He has taken one of the circum- stances which in many cases affords an ample guide to truth ; he has taken that circumstance as if, taken alone, it shifted the onus of proof, — as if it raised a presumption of partnership, — and then he has looked about over the rest of the contract to see if he could find anything which rebutted that presumption. Now that cannot be a right way of dealing with the case. You have a group of facts, — A, B, C, D, E, and what took place between Lady Day and Midsummer, I think that it was not. ... In my opinion, a tenant who had paid the last quarter's rent by driblets under pressure must be regarded as an undesirable tenant." Under the same head reference may be made to Davies v. Davies, 36 Ch. D. 392, where Lord Bowen showed the impossibility of enforcing a covenant on the part of a retiring partner to retire from the business "so far as the law allows." See also his lucid exposition of the law relating to forbearance of threatened proceedings as a con- sideration for a compromise in Miles v. New Zealand Co., 32 Ch. D, 291 ; and his statement of what is "new and original" within the meaning of the copyright law in Saunders v. Weil, [1893] ' Q- ^- 474- 1 [1892] 2 Q. B. 529. * [1893] ^ Q- B- 590. ^ 38 Ch. D. 262. 2 II Q. B. D. 688. 6 [,89,] 2 Ch. 470. 8 8 H. L. Cas. 268. » 18 Q. B. D. 717. « 14 App. Cas. 337.