502 HARVARD LAW REVIEW. Again, the defence of impossibility is seen to avail not only where there is an " absolute impossibility," but often, as in the principal case, where it would be unconscionable by reason of " relative impossibility " to enforce the obligation. The very word " impossibility " seems a misnomer. Re- lief of this kind is more characteristic of the ethical attitude of equity than of the unmoral attitude of law. Moreover, the course of pleading furnishes a clue. If the accepted statement that the promise is condi- tioned be true, an obligor charged with an absolute promise should plead negatively ; but impossibility is always an affirmative defence. This, again, betrays an equitable origin. To look at the principal case from this point of view, the covenant for quiet enjoyment is absolute, and it runs to the railway company as assignee. But it is against conscience to hold the lessors to their legal liability when the breach is authorized by an act of Parliament. The defence is conclusive, but it is not based upon the legal fiction of an implied condition. It is rather an affirmative defence equitable in origin. The Jurisdiction of Equity over Crimes. — In view of the state of American decisions on the subject, it may be with bad grace that we can criticise an English case enjoining the commission of a criminal offence. No English court has ever gone to the length of United States v. Debs, 64 Fed. Rep. 724, in which case at the suit of the United States an injunc- tion was granted and addressed to some persons who had not even been joined as defendants in the suit, restraining them from flagrant breaches of the peace. Yet the final decree of the Court of Appeal in the case of Lyons v. Wilkins, noted in the Law Times, Dec. 24, 1898, is not free from doubt. The defendants' offence was conspiracy ; striking members of a Trade Union picketed the plaintiffs works in order to impede his busi- ness. Upon the motion for an interlocutory injunction the chief argument was on the question whether the defendants' acts were criminal under the Property Act, 38 & 39 Vict. c. 86, and the injunction granted was in its wording aimed at the statutory offence. [1896J i Ch. 811. Mr. Jenkins, Q. C, suggested that this was not the proper attitude for a court of equity, but his objection left no impress upon the form of the decree. At the hearing of the cause Mr. Justice Byrne does not seem to have been entirely clear upon the iiiatter. 48 L. T. Rep. 618. He delayed his decision until after the decision of the civil action of Allen v. Floods [1898] App. Cas. I, and modified his decree somewhat in accordance with that case ; in this he seemed to be regarding only the common-law tort. But he made another alteration in the decree forbidding the de- fendants from besetting the premises of one of the plaintiff's employees " for any purpose except merely to ob';ain or communicate information ; " this change he made to fit the words to the phrasing of the Property Act, and in making it he must have been thinking solely of the statutory offence. Finally the decree of the Court of Appeals is apparently framed with equal care in conformity with the statute. The result can hardly be thought satisfactory, for in theory the court of equity should not have looked at the statute at all. Sparhawk v. Unioti Passenger Ry. Co.^ 54 Pa. St. 401. Altiiough equity does not lose jurisdiction over a tort, when that tort hap- pens to be a crime, its jurisdiction is not because of, but in spite of, the criminality of the act. A public nuisance causing special damage, or perhaps a libel, may be enjoined. The reason is that the act, besides
