Page:Harvard Law Review Volume 10.djvu/474

448 448 HARVARD LAW REVIEW. tion will lie at the suit of the party injured." 24 Am. Law Reg. 776, 777. But, as intimated above, malice or ill will is a matter of fact, and as such is to be found by the jury, and it is scarcely conceivable that a sound public policy can require, after the court has determined that a contract is not void as a matter of law, that it shall still be submitted to a jury to determine whether or not it has been made maliciously. And further, when the subject to be dealt with is not a contract at all, but merely the negative privilege of refusing to make a contract, how can it possibly be submitted to a jury? It appears to be inconceivable that the freedom of trade so tenderly nurtured by English and American law could endure such a restraint. The alternative of making the privilege of contracting or refusing to contract wellnigh absolute, has almost universally been adopted by the courts. The only case to be found, it is believed, in which this defence was properly set up and failed, is Jackson v. Stanfield^ 137 Ind. 592, but it is to be said that in that case the defendants had gone so far as to require and_ collect a money penalty from the seller, which may be outside a proper privilege, although the court in deciding the case does not appear to rest its opinion upon any such ground, and the Minnesota court in Bohn Mfg. Co. v. Hollis., 51 Minn. 227, 232, a case growing out of similar facts except that this penalty had not there been collected, does not seem to think this feature would destroy the privilege. But unless the case of Jackson v. Stanfield can be reconciled on this ground, it seems clearly to be opposed to every case of a similar kind, either in England or the United States, that has come under obser- vation. Another and very interesting question appears to be further raised, however, by such cases as that of the Toledo, i^c. Ry. Co. v. Pefmsylvania Co.^ 54 Fed. Rep. 730, 737, 738, and Temperton v. Russell^ [1893] i Q. B. 715; namely, whether the privilege set up in defence must not be, not only personal to the defendant, but also for his own benefit. If we can neglect the duty imposed upon a common carrier by common law and Fed- eral statute, which existed in the former of these cases, they seem to present a state of facts essentially as follows. The defendants in these cases had directed or threatened to direct the members of the voluntary associations of which they were officers to cease to work unless certain demands of theirs were complied with, and it would seem safe to assume that such a refusal to work in any ordinary case would certainly be their undoubted right and privilege. But in these cases the refusal was made or threat- ened, not for the benefit of those refusing to work, but to assist others to accomplish their object ; in other words, the strikes were or would have been what are commonly called "sympathetic." In both cases the defendants were enjoined. If, disregarding the duty resting upon com- mon carriers, these cases are rightly decided, it would seem to follow that the privilege set up in defence must be exercised for the personal advantage of the defendant, it may be of course in common with others, but not for the benefit solely of others. In other words, the privilege finds its limitation, as a matter of law, in the benefit to be obtained for the person exercising it and those acting with him. Is this the law? If so, every "boycott," as distinguished from a ''strike," is illegal, whether accompanied by threats and intimidation or not. It would seem doubt- ful if such were the law at present.