1922-12-15 — Page 6

THE HONGKONG DAILY PRESS, FRIDAY, DECEMBER 15TH, 1928.

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BREACH OF PROMISE CASES.

A JUDGE'S OPINION OF THEM, VALIDITT OF SENTIMENT AS AN

ARGUMENT.

lace more a Judge of the High Court ha made occasion to pronounce that the action for breach of promise of marriage is a public danger. Mr. Justica McCardio's dislike of these cases has never

been concealed, and it does not dimizish upon further experience. A year ago he declared from the Bench, that two-thirds of breach of promise actions are brought "not to remedy a loss incurred, but to inflict nume public hurt on a man by a disappointed week bas

woman."

Acuse

this

no...

caused him to repeat that opinion 'with new emphasis. It is, of course, to be recongnized that his Lordship by maan speak only for himself. Similar dict, perhaps less bluntly put, have often been heard in court, auil there is little doubt that a majority of lawyers of ex- perience would hold that the abuses of the breach of promise nation are auch na to make it against public policy for our law to allow it. Judges and jurists are not apt to admit the validity of sentiment as 4 argument for the maintenance or the But Mr. Justice change of statutea. McCardie takes different ground rou that which most of the critics the breach of promise action bare o cupied. They have in general been contest, to point to its notorious liability to abuse. That an appreciable number of the cases which come into court are such as Mr. Justice McCardie describes, casts of re venge, is not to be denied. "Spretre injuria form" is the motive power, not actual material loss. What is sought is not so much money as panish meat. We may on occasion sympathize with the angry woman rather than the man, though if we do we shall have to admit that it was not to gratify resentment of this sort that the law was framed, and that it is not desirable the Courts should have to administer the wild justice of revenge. But most laymen, and not a few lawyers would hold that this is not the worst form of abuse. Not the cases which come into court but thor which are settled out of court, exhibit the most disastrous effects of the law. Everyone knows that many of these are; in fact, however veiled by legal process, cases of blackmail. We may believe that those who are mulcted deserve in general little sympathy, though the leading ease of Bardel Pick wick should remind us that the innocent are not exempt from the devices of the blackmailer. "Wo can hardly deny that it is unfortunate the state of the law abould make smooth the blachmailer's path.

+ mitr

But Mr. Justice McCardie's criticism relies on other arguments. In this view. the action for breach of "promise "fre- quently causes

Lo carry out a promise from which he wished to escape, with a conseq. eneo to "the social life of the "community which can scarcely be estimated. Now there will be no dispute that the man who marries a woman whom be would rather not marry, does her a worse injury than if he jilted her. The marriage under threat or fear of an action for damages is a marriage which no

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prove. But we should not have thought

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would be rash to challenge any conclusion

which a Judge of Mr. Justice McCardie's

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at the Bar and on the Bench, but we may venture to suggest that in the nature of things the matrimonial and betrothal cases which come before him, are pathological. The effects of the law of breach of promise are not only to be estimated by practising lawyers, but by the baity. They have found, we suspect, that no, very large number of men are affected in their choice of a wife by any fear of legal action for a broken promise. They might well incline to hold that the vast majority of the ill-assorted unions, the results of which, as Mr. Justice McCardie says, are destructive, not only of individual happiness, but of the welfare of the community, are caused not by reluctant performance of a regretted promise but by hasty and ill-considered choice. Mr. Justice. McCardis laid down GREAT CHOICE A VARIETY. that a jury when considering breach of promise actions should have in mind their character, and their bearing upon the general well-being. Against the simple principle that it is not right for a man to enter into promise of marriage and then soek lightly to throw it off, be instructed the jury to consider whether it is not often Sfty times better that a promise should be broken rather than that parties who do not agree should launch into lifelong mis eries, with the consequences of infidelity and social ruin. Such a question so phrased can be answered only in one way. But we anbmit that it ignores the real grievance in "many an action for breach of promise. It would indeed be an adequate answer to the obsolete, action to compel the performance of a contract of marriage. But our modern plaintiffs do not make that grim claim." We may agree that, speaking broadly, it would. be a misfortune that parties to any action for breach of promise should marry. But this argument again; ignores the actual

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