
    *Willard, who sues by her next friend, against Stone.
    The promise consideration for ñi corresponding pro-
    contracts of infants are voidable ’ at merely616011011
    In an action breach^fpromise of marT18g6j til© 0.6-fendant cannot show, by general reputation, that after promise, another had supplanted him in the affections of the plaintiff.
    But he may show, that even after he had broken off all intimacy with the plaintiff, she ■was guilty of indecent and lacivious familiarities with another man.
    Where a promise to marry generally was proved, without any time fixed , but the»defendant hrode off all intimacy with the plaintiff; and on request, did not explain why * held, that it might be left to the jury to infer a refusal to marry.
    Assumpsit, for breach of promise of marriage; tried at the Oneida circuit, September 14th, 1825, before Williams, Q. Judge, ®
    At the trial, the plaintiff proved that the defendant had Promised to marry her; that he afterwards went a journey to the westward, and soon after his return, broke off all intimacy with her; and on an explanation being demanded ^ t^Le plaintiff’s friend, in the presence of both parties, he had given none.
    r^e defendant offered to prove, that during his absence on pis journey, it was a subject of general rumor in the neighborhood, that one Frink had supplanted the defendant in the plaintiff’s affections; of which the defendant was apprized on his return. On objection, the judge excluded the evidence.
    ALBANY,
    Feb. 1827.
    The defendant also offered to show, in mitigation of damages, that after he had discontinued all intimacy with the plaintiff, she had received the visits of Frink, often walking out with him into the fields, with arms around each other’s waists; and that the plaintiff had allowed him to hug and kiss her, and to handle her bosom; and that they had continued these walks to late hours, and in by places ; but on objection by the counsel for the plaintiff, the judge excluded the evidence.
    The defendant also objected, that the plaintiff could not recover upon her declaration, without proving a request that the defendant would marry her, and an offer to appoint a day. But the judge decided that it should be left to the jury to say, whether what passed between the parties was not equivalent to a request and refusal.
    The defendant also objected, that the plaintiff being a minor, and not able to make a valid promise on her part, there was no consideration for the defendant’s promise. This objection was also overruled ; and the jury found for the plaintiff, with $225 damages.
    
      *J. A. Spencer, for the defendant,
    now moved in arrest of judgment, and for a new trial.
    He founded his motion for arrest on the infancy of the plaintiff;
    And his motion for a new trial on the error of the judge, in excluding the evidence offered as above; and. in not requiring the plaintiff to show an offer of marriage to the defendant.
    That testimony of the plaintiff’s improper conduct was admissible, he cited 1 John. Cas. 116.
    
      Edw. Allen, contra.
   Curia, per Sutherland, J.

The motion in arrest of ju^omen* i® founded on the infancy of the plaintiff. The decision in Hunt v. Peake, (5 Cowen, 475,) disposes of this, objection. The contracts of infants are not void; but voidable at their election only. They are binding on those who contract with them ; and the precise point of the capacity of an infant to maintain an action on a contract of marriage, was much considered, and after several arguments, finally settled in Holt v. Ward Clarencieux, (2 Str. 937.) An infant plaintiff may maintain this action, though infancy will be a defence against it.

The evidence offered by the defendant, of rumors and reports in the neighborhood, that he had been supplanted in the plaintiff’s affections by Frink, during his absence at the westward, and that the plaintiff’s manners and conduct to Frink were spoken of with disapprobation, was properly, rejected. If her conduct was improper in relation to that individual, the defendant should, and might have proved the fact. If it was not, she ought not to suffer from the unfounded calumnies which may have been propagated against her, the truth or falsehood of which the defendant had the power of ascertaining.

The case of Johnson v. Caulkins, (1 John. Cas. 116,) seems to decide, that in an action for a breach of promise of marriage, the defendant may give in evidence, in miti gation of damages, the licentious or improper conduct of *the plaintiff, not only before but subsequent to the breaking off of the contract. The court there consider the action as brought, not only to recover compensation for the immediate injury sustained; but also damages for the loss of reputation; which, as they observed, must necessarily depend on the general conduct of the party subsequent, as well as previous to the injury complained of. The chief justice, Lansing, dissented in that case; but we are not aware that it has ever been overruled.

The evidence offered of the gross and indecent familiarities, between the plaintiff and Frink, subsequent to the defendant’s refusal to consummate his engagement, was, therefore, improperly rejected. It should have been received in mitigation of damages; and on that ground a new trial must be granted.

A tender of marriage, on the part of the plaintiff, was not necessary; and the evidence fully authorized the jury in finding a refusal on the part of the defendant. A new trial must be granted, with costs to abide the event.

Hew trial granted. 
      
       Per Savage, Ch. J.; see 2 Kent’s Com, 243
     
      
       See Palmer v. Andrews, 7 Wend. Rep. 142. In Boynton v. Kellogg, 3 Mass. Rep. 189, it was held, per Sedgwick, J.: 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 anyone 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 tbe'promise, it was proper, in the same view, for the consideration of the jury.
     