
    M. Johnson against Caulkins.
    In an action for a breach of a promise of marriage, the defendant was allowed to give in evidence in mitigation of damages, the licentious conduct of the plaintiff, without any limitation as to the time he made the promise to her, or to the period of the proposed marriage.
    In such a case, it is not necessary for the (female) plaintiff to prove a ¡previous offer to marry the defendant.
    This was an action on a promise of marriage. Plea the general issue. The cause was tried before Mr. Chief Justice Lansing, at the last sittings in Albany. The promise and breach were fully proved; and it appeared, that after the promise, to wit, on the 9th of July, 1797, the defendant left the town of Troy, where both parties resided, and [*117] *went to the West Indies; that shortly after his departure, the plaintiff was discovered to be in a state of pregnancy, and was delivered of a child on the 4th April, 1798; that the defendant returned to Troy, in the month of June, 1798, when he acknowledged the child to be his; that he again left Troy in July of the same year, and went to New London, for five or six weeks, having previously agreed to be married to the plaintiff on his return.
    The defendant offered testimony to prove licentious conduct in the plaintiff with other persons, and her general reputation subsequent to July, 1798, which was objected to by the plaintiff, and overruled by the judge. The defendant was, however, permitted to give evidence of her conduct and reputation previous to the expiration of the six weeks after he left Troy, in July, 1798, when it was agreed that the marriage should take place ; but no proof applicable to her subsequent character or conduct was admitted. The defendant then gave evidence to show, that the plaintiff’s character as to sobriety and virtue before that period was not good, which was Opposed by proof on the part of the plaintiff, and the weight of evidence in this respect was in favoi of the plaintiff.
    A verdict was found for the plaintiff, for 1000 dollars damages. The defendant applied for a new trial, on the ground that he ought to have been permitted to prove other acts of licentiousness in the plaintiff, and her general character, without being restrained to the period above mentioned.
    
      Bliss, for the plaintiff
    Woodworth, for the defendant.
   Benson, J.

I am of opinion, that with a view to the question of damages, the defendant ought to have been permitted to show licentious conduct in the plaintiff, and her general character as to sobriety and virtue, without any limitation of time. The object of this action is not merely a com- ' pensation for the immediate injury sustained, but damages for the loss of reputation.' This must necessarily depend • on the general conduct of the party *subsequent [*118] to, as well as previous to the injury complained of, and the damages to be recovered, as in actions for defamation, ought to be regulated by all the circumstances of the case. The proof of reputation cannot depend on time ; it is a question which is general in its nature, and the inquiry respecting it, when material, must be general.

Kadcliff, J., Kent, J. and Lewis, J. concurred.

Lansing, Ch. J.

dissented. The substance of his opinion was as follows:: It is not denied that an inquiry into the general conduct and character of the plaintiff was proper. My impression was, that the instant the defendant had decidedly abandoned the plaintiff, which was to be collected from hi's absenting himself contrary to his agreement, he precluded himself from any interest in her character or conduct; and that the inquiries' ought, therefore, to be restricted to that period. If proof had not been given that the plaintiff had declared, that she expected the defendant’s return in five or six weeks, I should, on this principle, have restricted the defendant to the time he left Troy, unless he could have shown that he left it animo revertendi.

The damages are, in every instance of vindictive actions, presumed to be regulated by the nature of the injury received, and that complained of by the plaintiff is one of the deepest dye.

The defendant ought not to be permitted to avail himself of subsequent circumstances, which his own abandoned conduct might have produced.

With respect to the particular case now under consideration, there are some reasons =to question the respectability of the plaintiff’s character, and some that operate very forcibly. in her favor. *

[Here the chief justice recapitulated the facts as proved at the trial.], ' ,

Under this view, if the principles to govern.this case were now to be fixed, without being influenced by authority, I should doubt whether the defendant ought to be [*119] permitted' to question the plaintiff’s general reputation at all, and whether he ought not to- have been strictly limited to such particular instances of intemperance, incontinence, or imprudence, not the objects of general observation, as1 would excuse his gross violation of a deliberate contract entered into under circumstances which irresistibly imposed upon him a knowledge of her general conduct and character. . ,

Something was -said respecting the damages, which were alleged to be excessive. The jury are the proper judges of the damages, and though I am not prepared to say, that there is no case, however outrageous in actions of this kind, in which the court will not interpose to correct a verdict on that ground, I think it ought certainly never to be done, -unless the inequality between the injury and compensation is extreme. I am not perfectly satisfied with the verdict; I think less damages would have been nearer the line of just retribution; but considering all the circumstances, I do not think them extravagant.

Upon the whole, on this point I am against a new trial.

Another point has been raised. It has been said, that the plaintiff did not show an offer of marriage on her part. We are all of opinion, that there is n.o ground for this objection, the defendant having put it out of the plaintiff’s power to make the offer, by absconding. It cannot, therefore, be necessary to inquire, whether it is imposed on the plaintiff in cases of this kind, generally to prove such an offer,

Benson, U added on the last point, in. which the rest of the court concurred, that a tender of marriage was unnecessary.

New trial granted. 
      
      
         The doctrine of this case is affirmed in Willard v. Stone, 7 Cowen, 22. See Palmer v. Andrews, 7 Wend. 142, and also, Boynton v. Kellogg, 3 Mass. R. 189. In this case, Sedgwick, J. decided : 1. That if the woman was of bad character at the time of the contract, and that was unknown to the defendant, the verdict ought to be in his favor: 2. That if the plaintiff after the promise, had prostituted her person to any person other than the defendant, she thereby discharged the defendant: 3. That if her conduct was improperly indelicate, although not criminal before the promise, and it was unknown to the defendant, it ought to be considered in mitigation of damages : 4. That, if such was her conduct after the promise, it was proper in the same view for the consideration of the jury.
     