Page:Harvard Law Review Volume 10.djvu/473

447 NOTES. 447 of indefinite duration, and showing that the Rule against Perpetuities is only concerned with the time of the vesting of future estates, Pulitzer V. Livingston is a valuable case on the question of the validity of powers of sale. A power of sale which may be exercised beyond the period of lives in being and twenty-one years is not bad if it is within the control of the owner of the estate, just as a contingent limitation after an estate tail is unobjectionable, because at any time it may rightfully be destroyed. See Gray, Perpet. §§ 490, 498, 506. While in Pulitzer v. Livingston each cestui could revoke the trusts as to his share, should a different result be reached where all the cestuis must join to defeat the power of sale? There is no practical reason for a difference, and technical requirements seem to be fully satisfied if the power is actually destructible. That is the result in Seamans v. Gibbs, 132 Mass. 239, though the reasons given are not satisfactory. In Goodier v. Edmunds, [1893] 3 Ch. 455, how- ever, it was held otherwise, but without any allusion to this question. See 7 Harvard Law Review, 427, where that case is criticised. Injunctions against Interference with Business. -^ — After an elaborate reargumeiit by the complainants, the Supreme Court of Rhode Island in a short rescript has recently affirmed their prior decision in the case of Alacauley Bros. v. Tierney, 33 Atl. Rep. i. At the time of its prior decision, the case attracted considerable attention and some adverse comment. It belongs to that general class of cases which appears to be rapidly increasing in number at the present day, in which the plaintiffs seek to enjoin the defendants from interfering with their business rights. The list of cases in which the plaintiff has succeeded in this is a very long one ; and those in which the defendants have succeeded in avoid- ing an injunction against them, though not nearly as numerous, yet constitute a respectable number, of which McGregor v. The Mogul Steam- ship Co. is the leading case. In all this class of cases the plaintiffs gen- erally allege the acts of the defendants as wrongfully and maliciously contrived to injure them. This allegation, if not absolutely essential, is sufficient if maintained by proof, and is easily made. But malice being a question of fact, such a complaint is good upon demurrer, the malice being thereby admitted, and consequently such cases as Delz. v. Winfree., 80 Tex. 400, and Olive v. l^an Patten, 7 Tex. Civ. App. 630, both of whicii contained such allegations and were decided upon demurrer, while cor- rectly decided, are not opposed to other similar cases which were not decided upon demurrer, although they are stated to be so in a note to the case under discussion in 24 Am. Law. Reg. 776. The defence of the exercise of a legal right or privilege is so far an affirmative one that it must be set up by the defendants, as a consideration of the articles of J. H. Wigmore and Judge Holmes in previous numbers of this Review will show. Judge Holmes in his excellent article has also shown that a privilege or excuse of the defendant for the commission of a tortious act ha.5 its foundation and its limitation in a broad public policy. The contention is made, however, in the class of cases under discussion, that, " if the acts of the parties to the agreement are such that they do not serve a legitimate purpose, but appear to be wanton and malicious, an ac- 1 For this note the Editors are indebted to Mr. William R. Tillinghast, of Provi- dence, R. I.