Page:The Green Bag (1889–1914), Volume 18.pdf/184

 EDITORIAL DEPARTMENT tailed study of American legislation would pro duce the conviction that, faulty as are our divorce laws, our marriage laws are far worse; while our apathy, our carelessness, and levity touching the safe-guards of the matrimonial institution are well nigh incredible." He con cedes that " the influence of legislation in curing social disease is very restricted. Appar ently if there is to be salvation it must come through the vitalizing regenerative power of a more efficient moral, physical, and social training of the young. The fundamental causes of divorce lie far beyond the reach of the statute maker." " Still the legislator has an important, though relatively narrow func tion to perform. He can create a legal environ ment favorable to reform. Clear, certain, and simple laws which cannot be evaded, constitute such an environment." He finds no public sentiment favoring a uniform code for the entire matrimonial and divorce law, and thinks it inexpedient to strive for a uniform list of statutory causes of divorce. He thinks it best to confine the movement to an effort to procure the adoption of a model statute designed to prevent clandestine, collusive, or hasty divorce. He favors uniform state legislation rather than an attempt by consti tutional amendment to enact a federal law. DOMESTIC RELATIONS. In the January Law Quarterly Review (V. xxii, p. 64) Alfred Fellows urges the necessity of " Changes in the Law of Husband and Wife" — He treats of a number of anomalies resulting from the statutes changing common law, which put the wife and her property wholly in the power of the husband. He says that the pendulum has swung too far the other way in England, and that the whole subject wants revising to be put on a basis consistent with common law principles. EQUITY (Injunctions) . James Wallace Bry an discusses in the January American Law Review (V. xl, p. 42) " Injunctions Against Strikes." He points out that though a strike may be illegal or criminal, still from its nature it cannot be enjoined. In general, so long as the combination pursues legitimate objects with lawful means, it is subject to no interfer ence by any court of law or equity. A com bination, however, becomes unlawful when it adopts a wrongful purpose, or when it seeks

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a lawful end by illegal means. In either con tingency its acts in furtherance of that purpose may be enjoined when a proper case arises, and this applies to labor unions as well as to other combinations. EQUITY. (Specific Performance) " Specific Performance by Injunction " by Clarence D. Ashley in the February Columbia Law Review (V. vi, p. 82) is summarized by the author as follows: "A court of equity in exercising its juris diction over contracts, does so because a court of law can give only money damages for a breach, which, in many instances would be inadequate. In such cases, the promisee desires the specific thing which is promised to him, and unless he receives that, he does not derive the benefit he was entitled to expect. When money damages will not be adequate, equity ought to grant its relief if the circum stances are such that it can effectively act. Equity gives its relief then, when justice re quires that the promisee should receive per formance, and the contract is of such a charac ter that this can be reasonably brought about by the court. If, however, equity cannot bring about a full performance of the contract, it cannot satisfactorily or justly intervene by compelling a part performance only. Unless the intervention brings about directly a com plete performance, great injustice is likely to result. Equity should not interfere at all, unless it can by a proper method bring about the performance that is sought. If it cannot do that, it should refrain, from intervening, and leave the parties to the common law." He finds that the principles he states have become confused through the surprising deci sion of Lumley v. Wagner, in which the court enjoined an actor from performing for others in breach of his contract with the plaintiff, though it did not appear that the plaintiff was prepared to perform on his part. In spite of the court's disclaimers, it was attempted to do indirectly what it admitted it could not do directly. The author suggests that in these cases the injunction might be made conditional upon performance by the plaintiff. He also criticises some decisions which refused the injunction in cases where the actor is of an inferior grade. Since no distinction founded on value is made in bills for specific perform