
    * Clarissa Harlowe Boynton versus Ezra Kellogg
    In an action for a breach of a promise of marriage, and for seduction, the defendant shall not give in evidence the general bad character of the plaintiff between the promise and the breach, in mitigation of damages,
    Case for a breach of promise of marriage and seduction. Upon the general issue pleaded, the cause was tried before Sedgwick, J., at the last May term, in this county. It appears from the judge's report, that, after the evidence of the defendant’s promise, and of the breach of it, was given to the jury, the defendant gave in evidence the circumstances, condition, and age of the parties respectively, and also evidence of instances of the misconduct and impropriety and indelicacy of the behavior of the plaintiff, as well before as after the defendant’s promise, and before the breach of it. On this part of the evidence, the opinion of the judge was declared to be, 1. That if the woman was of bad character at the time of the contract, and that was unknown to the defendant, the verdir< 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.
    It appears in evidence, that the parties from early life had lived within a few miles of each other, and, for some time before the promise, in the same neighborhood; and that a personal intimacy had existed for a considerable time before the promise.
    The defendant’s counsel offered to prove a general bad character of the plaintiff as to chastity, between the time of the promise, and the breach of it; but they declined to state whether they would rely on it as an answer to the action, or only in mitigation of damages. The evidence was rejected, the judge being of opinion that in either view it was improper. After a verdict for the plaintiff, the defendant’s counsel filed an exception to this last opinion of the judge, and ■ on that ground a motion for a new trial was now made.
    
      '* In support of the motion, it was contended that, in [* 190 J an action of this kind, the character of the party was the very point in issue, and therefore evidence to that point ought not to have been rejected. If a man, believing that a woman’s conduct has been regular, and that her character is free from reproach, promises her marriage; and afterwards is convinced that he has committed an error, and that the woman’s conduct has been lewd and unchaste, whereby her character is degraded ; it is humbly-conceived that no laws, divine or human, will compel a performance, or punish a breach of a promise so circumstanced. The consequences of a performance would be mutual, and perhaps equal wretchedness to both the parties. On what rational ground can a woman, in such a case, claim damages for the breach of a promise, the performance of which would entail misery upon her for life ?
    The case of Foulkes vs. Sellway 
       is directly in point, and if, being a nisi prius decision only, it is not received as authority, yet the sound reason of the case cannot fail of having weight with the Court. The witness, in that case, appears to have been sent to the place where the plaintiff lived, to look up the blemishes in her general character. Yet Lord Kenyon admitted him, and observed that character was • the only point in issue. That was public «pinion, founded on the conduct of the party, and was a fair subject of inquiry; his lordship, therefore, thought that what that public thought was evidence on the issue as it then stood.
    If we are' to be told that it was our duty to have known the plaintiff’s character, and our folly to make a promise of this kind without previous inquiry, we answer that, besides the indelicacy of such an observation in the mouth of the plaintiff, it is well known that the character of a female is a subject always treated with tenderness, and that persons of the condition in society, which would justify an inquiry of them, would be extremely unwilling to injure a character not altogether sunk in infamy, especially in the estimation of one supposed to be in the relation of a lover.
    [ * 191 ] * Whether the lewdness suggested was in fact before the promise was made, or afterwards, cannot be material. The discovery of it, let it have happened when it may, upon every principle of morality and sound policy, operates to release the party from the obligation to fulfil the promise.
    The plaintiff’s counsel were stopped by the Court.
    
      
      
        [Irving vs. Greenwood, 1 Car. § P. 350.—Ed.]
    
    
      
       [Quære, why not in bar ?—Irving vs. Greenwood, 1 Car. & P. 350.— Baddely vs Mortlock, Holt, 151.—Ed.]
    
    
      
      
         3 Esp. Rep. 236
    
   Parker, J.

The opinions held by the judge in the trial of this, cause were very liberal. It appears that the defendant was permitted to give in evidence any instances of misconduct, and even of indelicacy, in the plaintiff; and that, failing to produce proof of any such instances, his counsel desired to go into an inquiry respecting her general character. This was, in my opinion, very properly denied. It appears, from the declaration in this case, that the plaintiff had been seduced by the defendant, and that pregnancy was the consequence of the seduction. This, of itself, would degrade her in the estimation of the public; and the defendant wishes to avail himself of this degradation, a consequence of his own misconduct, to avoid the plaintiff’s action, or to reduce the sum she may recover in damages. No argument can show the absurdity of such a proposal in a stronger light than a bare statement of it. A gentleman, under pretence of courtship, pursues a lady to seduction, leaves her to suffer the pain and ignominy which necessarily follow, and when she appeals to the laws of her country for a pecuniary satisfaction, even that, inadequate as it is, is to be resisted or reduced, by urging her ignominy as a reason why she should not recover. To permit such a defence, would be-a reproach upon the administration of our laws. I am against a new trial.

Sedgwick, J.

It does appear to me that the defendant had every reasonable indulgence at the trial. To go further, and permit evidence of the plaintiff’s general character, injured and degraded, as it necessarily was ty the treatment she had received from the defendant, would be placing the other sex absolutely in the power of ours. It is not to be endured, that a man should seduce a female, and ruin her character and standing in society; and when she * comes to ask compensation for the injury, under [ * 192 ] which she is suffering, avail himself of her humiliation and disgrace, to diminish her claim of damages. I am decidedly against granting a new trial.

The Attorney-General, and Whiting, for the plaintiff.

Dewey, Thayer, and Hulbert, for the defendant.

Parsons, C. J.,

concurred, and observed that the doctrine laid down by Lord Kenyon, in the case cited for the defendant, was good law. In common cases, where character is in issue, undoubtedly evidence of the public opinion is to be received.

The only point decided in the case at bar is, that when, after a promise of marriage, a woman is seduced and deserted by her lover, in consequence of' which she acquires a bad character, he shall not be permitted to avail himself of that character, in mitigation of the damages, in an action brought by her for the injury arising from the breach of his promise to marry her .

Judgment according to the verdict. 
      
       [If it appear that the defendant was induced to make the promise, or continue the connection, either by misrepresentation, or wilful suppression of the real state of the circumstances of the family, and previous life of the plaintiff; this goes in bar of tb/ action, and not to the damages only.—Wheaton vs. Lewis, 1 C. & P. 529.—Horan vs. Humphreys, Loft. 80.—Foote vs. Hayne, 1 Car. & P. 546.—Ed.] .
     