34

than he had before the code. The plaintiff has, of course, waived his right. But where the plaintiff elects to pursue an equitable and a legal cause of action, both parties should have the right to a jury trial of the legal cause of action. The option to waive or take advantage of the jury right in such cases should rest, as it always has, with the plaintiff, not with the defendant. It is true that the manner in which the plaintiff elected to proceed was easier to ascertain in the past because of the two distinct forums. But that is no reason for denying him the election today when we have but one forum. There seems to be a certain test to determine how the plaintiff has decided to exercise his option. If the plaintiff draws up his complaint as one complete narrative, as in the old equity bill, we have an equitable cause of action alone set forth. If the complaint sets out in one count allegations which entitle him to legal relief, and in another count allegations entitling him to equitable relief (even though in the latter count there may be a substantial repetition of the allegations in the former), we may reasonably consider him to have decided to avail himself of both his legal and his equitable causes of action. 35 This test may seem to place great emphasis upon form in a day when form is regarded as anathema; but it is not believed to be an undue emphasis, inasmuch as it makes for certainty, and, what is more important, it means a real preservation in each party of the jury right wherever it existed before the adoption of the constitutional guaranty. Under the present illogical rule this right is virtually denied the plaintiff.

If, therefore, in the present case the plaintiff's complaint contained a continuous narrative, the minority would seem to have reached the correct result. If, however, there were two counts, one based on the legal and one based on the equitable ground of relief, the majority's conclusion would seem the better one. The report of the case does not show what the fact was. Undoubtedly neither side attached any importance to it.

Jacob Lewis Gold.

Torts: Malice in Competition: The question as to the effect of malice upon an act done in the exercise of an otherwise legal right has been for years a subject of speculation among courts and legal writers. The question is pointedly brought out in the recent case of Beardsley v. Kilmer, 236 N. Y. 80 (1923); a case in which it was

"Brown v. Buck, 75 Mich. 274, 284 (1889): “The right to have equity controversies dealt with by equitable methods is as sacred as the right of trial by jury.'

That does not, of course, prevent a jury trial of legal issues directed by the court. But such trial should have only the evidentiary force that feigned issues had at common law: Vermilyea v. Palmer, 52 N. Y. 471 (1873).

35"The petition may embody a count in equity and a count at law, if they arise out of the same transaction and relate to the same subject matter. But they should be separately stated and intelligently distinguished, for they require separate trials and judgments:" Henderson v. Dickey, supra, n. 32, at p. 166.

'See 8 Har. L. Rev. 1; 18 Har. L. Rev. 411; 22 Har. L. Rev. 97; 2 Northwestern L. Rev. 65; 56 U. of Penn. L. Rev. 217; 30 Yale L. J. 145; 32 Yale L. 194.

alleged by the plaintiff that the defendant, a manufacturer of a patent medicine known as "Swamp Root," had entered the newspaper business with the sole purpose of driving the plaintiff out of business. The plaintiff was the general manager and majority stockholder of the Evening Herald, a newspaper published in the city of Binghamton. For reasons not disclosed in the report, the plaintiff, through the medium of his newspaper, had, it is charged, subjected the defendant to a considerable amount of ridicule and had taken peculiar delight in attacking the defendant in his capacity of manufacturer of the famous "Swamp Root." The defendant, on numerous occasions, had threatened to start a rival newspaper and drive the plaintiff out of business, and finally, in 1904 began the publication of the Binghamton Press. The final result was that, in 1910, the plaintiff's newspaper was forced to discontinue publication. Judgment was given for the defendant.

The case presents this problem: Does the fact that the defendant entered the newspaper business with the hope and probably the intention of driving the plaintiff out of businesss, change the lawful act of competition into an actionable wrong? It may be well to distinguish the principal case from that class of cases where the ultimate purpose of the defendant is not to injure the plaintiff, but rather is to benefit himself, the loss of the plaintiff being only an incidental means to that end. The courts are unanimous in holding that, in that class of cases, there can be no recovery.2

But it will be conceded that, where a person exercises an otherwise legal right for no purpose other than to injure the plaintiff, we have an entirely different problem. And yet, if we were to take at their face value the forceful remarks of some of our leading American courts, we should be forced to conclude that, even in such a case, no recovery would be permitted. We find Grover, J., in an early New York case, laying down the rule that, "Courts have no power to deny to a party his legal right, because it disapproves his motives for insisting upon it." And Black, J., in the Pennsylvania case of Jenkins v. Fowler, states the rule even more broadly in the now classical words, "Malicious motives make a bad act worse; but they cannot make that wrong which, in its own essence, is lawful." These are fairly representative of quotations to be found all through the American reports.

An extended examination of the cases, however, will reveal the following facts. First, in a small number of jurisdictions, recovery has been permitted in cases where the defendant was exercising his right with unmixed malice (e. g., where the sole and only purpose of the defendant was to injure the plaintiff) and where the right being

"Passaic Print Works v. Ely and Walker Dry-Goods Co., 105 Fed. 163 (1900); Bourlier Brothers v. Macauley, 91 Ky. 135 (1891); Lewis v. Huie-Hodge Lumber Co., 121 La. 658 (1908); Glendon Iron Co. v. Uhler, 75 Pa. 467 (1874); The South Royalton Bank v. The Suffolk Bank, 27 Vt. 505 (1854). 'Clinton v. Myers, 46 N. Y. 511 (1871), at p. 520.

424 Pa. 308 (1855), at p. 310.

exercised by the defendant was a qualified right. In these same jurisdictions, no recovery has been permitted where the right being exercised was an absolute right. These decisions, it would seem, are based upon the most elementary of tort principles. In order to give a cause of action, a right must be violated. It is obvious that a person exercising an absolute right cannot, through that exercise, infringe upon the right of others since an absolute right, by its very name, implies that it can be exercised at all times and under all circumstances. Consequently, since no right has been violated, there can be no actionable wrong whether malice is present or not. But when we pass into the field of qualified rights, we are treading on new ground. A qualified right is in the nature of a privilege. It must be exercised reasonably and an unreasonable use of it gives a cause of action. A common illustration of a qualified right is to be found in cases involving the rights of riparian owners to the waters running through their lands. They have a qualified right; a right to use these waters reasonably in a way consistent with the equal rights of their neighbors. And it would seem that a malicious use is an unreasonable use; that where a man exercises his right for no purpose other than to injure the plaintiff, he has stepped beyond the bounds of reason and should be liable.

A second interesting fact found from an examination of the reports is that, in a large majority of cases where recovery has been refused, the right being exercised was an absolute right. This would seem to indicate that, while the courts in this line of cases have never openly recognized what we shall term the progressive rule, they have at least followed it. And it is further to be noted that their decisions leave them open to its adoption since, even under the progressive rule, no recovery could have been permitted in cases of absolute right. The situation in New York seems peculiarly open to the adoption of the so-called progressive rule. In an early New York case we find a dictum by Woodworth, J., to the effect that, "In the exercise of a lawful right, a party may become liable to an action, where it appears that the act was done maliciously." We find also that the New York decisions in which recovery has been refused are not repugnant to the adoption of the rule since they were all cases of absolute right. And the opinion in the principal case would seem to warrant

'Barclay v. Abraham, 121 Ia. 619 (1903); Dunshee v. Standard Oil Co., 152 Ia. 618 (1911); Tuttle v. Buck, 107 Minn. 145 (1909); Globe and Rutgers Fire Insurance Co. v. Firemen's Fund Insurance Co., 97 Miss. 148 (1910); Wesley v. Native Lumber Co., 97 Miss. 814 (1910); Hoy v. Sterrett, 2 Watts (Pa.) 327 (1834); Hutton v. Watters, 132 Tenn. 527 (1915).

"McCune v. Norwich City Gas Co., 30 Conn. 521 (1862); Buck v. Latham, 110 Minn. 523 (1910); Hunt v. Simonds, 19 Mo. 583 (1854); Mahan v. Brown, 13 Wend. (N. Y.) 261 (1835); The Auburn and Cato Plank Road v. Douglass, 9 N. Y. 444 (1854); Pickard v. Collins, 23 Barb. (N. Y.) 444 (1856); Frazier v. Brown, 12 Oh. 294 (1861); Jenkins v. Fowler, 24 Pa. 308 (1855); Smith v. Johnson, 76 Pa. 191 (1874); Chatfield v. Wilson, 28 Vt. 49 (1855); Metzger v. Hochrein, 107 Wis. 267 (1900); For additional cases, see 62 L. R. A. (N. S.) 673; 18 Har. L. Rev. 411.

'Panton v. Holland, 17 Johns. (N. Y.) 92, (1819), at p. 98.

Mahan v. Brown, supra, n. 6; Auburn and Cato Plank Road v. Douglass, supra, n. 6; Pickard v. Collins, supra, n. 6; Clinton v. Myers, 46 N. Y. 511 (1871); Phelps v. Nowlen, 72 N. Y. 39 (1878).

the assumption that the Court of Appeals is at least receptive toward a change of policy. It is first to be noted that the court, in giving judgment for the defendant, was not required to meet this issue since it found that the case was one of mixed, and not unmixed, malice; that the defendant, in entering the newspaper business, had in mind more than the single purpose of injuring the plaintiff.

That this distinction was in the mind of the court seems clear when we note that the Appellate Division' had treated the case as strictly one of unmixed malice. If the Court of Appeals, by this finding, does not actually adopt the rule, we can at least conclude that it does not announce any open conflict with it.

But the court was not content with the adopting of a mere negative attitude. We find remarks in the opinion which seem to indicate that the court actually favors the rule. The cases of Hutton v. Watters, 10 Chesley v. King," Raycroft v. Tayntor1 and London Guar. Co. & Ac. v. Horns are cited with approval, the court adding, "We are quite content to adopt at least the limitation upon liability formulated by these decisions." In two of these cases the so-called progressive rule seems to have been adopted. In Hutton v. Watters, the plaintiff was engaged in the business of keeping student roomers. The defendant was the president of the Hall-Moody Institute. Because of a grudge against the plaintiff, the defendant used all his influence to induce students not to room at her establishment, and as a result she was occasioned considerable damage. The court, in giving judgment for the plaintiff, said, "He [the defendant] cannot, with justification in law, use his property, or anything else that appertains to him, in such manner as to wantonly injure another." In Chesley v. King, the plaintiff alleged that the defendant had dug a well with. the express purpose of cutting off the source of supply to the plaintiff's spring. The court in this case says, "In view of the very numerous cases where 'the commission of a lawful act does become actionable' by reason of the mere carelessness of him who does it, when it results in damage to innocent parties, it sounds strangely to say that its commission for the sole purpose of inflicting damage upon another and without any design to secure a benefit to its doer or others, is not actionable when the damage intended is thereby actually caused."15 The case of Raycroft v. Tayntor 16 seems to have been decided upon the ground that the defendant was exercising an absolute right. The plaintiff was employed by a contractor to work in a stone quarry upon the defendant's land. As a result of a quarrel between the plaintiff and defendant, the defendant caused the plaintiff to be discharged. The court seemed to treat these acts of the defendant as exercised under a right connected with the land and of an absolute nature. The case is thus in no way repugnant to the progressive rule.

The case of London Guarantee & Ac. Co. v. Horn17 seems outside

9200 App. Div. (N. Y.) 378 (1922).

1174 Me. 164 (1882).

13206 Ill. 493 (1904).
15 Supra, n. II, at p. 172.
17 Supra, n. 13.

10132 Tenn. 527 (1915).
1268 Vt. 219 (1896).
14 Supra, n. 10, at p. 531.
16 Supra, n. 12.

the question. The plaintiff was employed under a contract terminable at will. The defendant secured his discharge from this employment. As was pointed out by the court in the principal case, such decisions are not "strictly applicable to the question outlined."

The situation in New York may be briefly summarized as follows: the past decisions of the court are not repugnant to the adoption of the so-called progressive rule since they were all cases of absolute right. The court in the principal case does not necessarily preclude the adoption of this rule in view of the finding that the case was one of mixed, and not unmixed, malice. Finally the court cites with approval at least two cases in which the progressive rule has been followed. It would not be unreasonable to suppose that, should a clear case of unmixed malice come before the court, recovery would be permitted.

W. D. Morgan.

Wills: Effect of partial invalidity: Charitable trusts: Intent of the testator:-It is well established that the courts preserve all such valid parts of a will as can be enforced without defeating the general intent of the testator.1 Courts have said that they would not make new wills for testators who had failed to make valid wills for themselves. When, however, they were forced to choose between setting aside a will altogether or cutting out only its void provisions, they established the rule that when the several parts of a will should be so intermingled and interdependent that the bad could not be separated from the good, the will would fail entirely; but when it should be possible to cut out the invalid provisions so as to leave the valid parts intact and to preserve the general plan of the testator, the valid parts would be preserved."

This rule has most often been applied in cases in which there was a void trust to be followed by an absolute legacy. The effect of cutting out the void trust in such a case is simply to accelerate the vesting of the legacy. Unger v. Loewy, 236 N. Y. 73 (1923), applied this rule to a less commonplace set of facts. Benno Loewy, by his will, divided his estate into two parts. The first consisted of his library, which he bequeathed to Cornell University, or, in case Cornell should not accept it, to a certain other university. The recipient was required to convenant to provide for its maintenance and to keep it as a separate library under the name of "The Benno Loewy Library.” The second part of the estate consisted of all his other property, which he directed to be sold and the proceeds invested. The income from the investments was to go to his wife during her life. After her

1Miller v. Weston, 67 Col. 534 (1920); Russell v. Hartley, 83 Conn. 654 (1910); Burke v. Burke, 259 Ill. 262 (1913); Gully v. Neville, 55 So. (Miss.) 289 (1911); Kane v. Gott, 24 Wend. (N. Y.) 641 (1840); Savage v. Burnham, 17 N. Y. 561 (1858); Beekman v. Bonsor, 23 N. Y. 298 (1861); Levy v. Levy, 33 N. Y. 97 (1865); Harrison v. Harrison, 36 N. Y. 543 (1867); Adams v. Perry, 43 N. Y. 487 (1871); Henderson v. Henderson, 113 N. Y. 1 (1889); Tilden v. Green, 130 N. Y. 29 (1891); Kalish v. Kalish, 166 N. Y. 368 (1901); Matter of Hitchcock, 222 N. Y. 57 (1917).

Kalish v. Kalish, supra, n. I.