(z) Hall v. Wright, 96 Eng. C. L. 745.

(a) Short v. Stone, 8 Q. B. 869. Lord Denman, A rape wholly without the fault of the woman, would discharge the man from his obligation. Addison on Cont. 584. And in France it seems that loss of a nose would be sufficient. At common law it would hardly be held that a misfortune, which merely affected personal beauty, was a sufficient defence. Id.

(b) Taylor v. Pugh, 1 Hare, 114.

(c) Addison on Cont. 581.

(d) See Southard v. Rexford, 6 Cowen, 264; Kelly v. Renfro, 9 Ala. 325.

(e) Harrison v. Cage, 1 Ld. Raym. 387. By Holt, C. J. "Precontract is a disability, but it will not avoid the performance of your promise, because it proceeds from your own act."

(f) Wild v. Harris, 7 C. B. 999; Mill1 Where by a statute the marriage of an impotent person is void, a breach of such a one's promise to marry is not actionable. Gulick v. Gulick, 12 Vroom, 13. See Sprague v. Craig, 51 Ill. 288.

2 Dean v. Skiff, 128 Mass. 174. See Shellenbarger v. Blake, 67 Ind. 75.

3 If the plaintiff was ignorant of that fact, Kelly v. Riley, 106 Mass. 339; but an good defence, that the plaintiff, when making the contract for the breach of which the action is brought, was under an engagement to another party. For instance, if a woman sues a man for a breach of promise of marriage, she must of course show that the promise was reciprocated by her; and if the defendant could then show, that when she made this promise to him she was bound by a previous promise to another, it would seem to be just that she should not recover for the violation of a contract, her entering into which was a precisely similar violation of contract. But this question does not appear to have been settled by adjudication. It would seem, however, that where there was a fraudulent concealment of the prior contract by the plaintiff, the fraud being sufficiently pleaded, the defence would be held good. (g) The contract with a woman divorced for her own fault would be invalid in a State where such woman cannot legally marry. (gg)

An offer to renew or execute the contract after a refusal should be no defence; nor a change of feeling, nor the fact that another had supplanted the plaintiff in the affections of the defendant. 1 But it would seem, on general principles, to be a good defence, that the promise was made on condition that the plaintiff would commit fornication with the defendant; for such a promise might be void as founded upon an illegal consideration. (h) 2 But ward v. Littleword, 1 E. L. & E. 408; s. c. 5 Exch. 775. The consideration was said to be that the plaintiff would remain unmarried. Pollock, C. B., said that the defendant impliedly promised that there was no impediment to his performing his promise. This doctrine was also held in the case of Blattmaker v. Saul, which was decided in Brooklyn, N. Y. in October, 1858.

(g) Beachey v. Brown, 06 Eng. C. L. 706.'

(gg) Haviland v. Haviland, 34 N. Y. 648.

(h) This would seem to be doubtful from Morton v. Fenn, 3 Dougl. 211. This was an action for breach of promise of marriage, tried before Lord Mansfield. The evidence was, that the defendant, who was a man of fortune in Jamaica, aged seventy, promised to marry the plaintiff, a widow of fifty-three, if she would go to bed to him that night, which she did, and lived afterwards with him a considerable time. It appeared also that the defendant several times afterwards repeated his resolution to marry her, but that he afterwards married another woman. The jury found a verdict for the plaintiff, with £2,000 damages. A rule nisi for a new trial having been obtained, on the ground that it was turpis contractus, being on condition of the plaintiff going to bed with the defendant, engagement to marry between a woman and a married man, known to her to be such, as soon as his wife should die or be divorced, is void as against public policy. Noice v. Brown, 9 Vroom, 228; 10 Vroom, 133; Paddock v. Robinson, 63 Ill. 99.

1 Nor a feeling that the proposed marriage would not tend to the parties' happiness. Coolidge v. Neat, 129 Mass. 146.

2 But where illicit intercourse was not the consideration of the promise, a promise to marry at a definite future time, and sooner, should pregnancy occur, is valid, and enforceable as soon as pregnancy happens. Kurtz v. Frank, 76 Ind. 594. See Hanks v. Naglee, 54 Cal. 51.

it is certainly no defence that the promise was made after fornication, if made with no view to a repetition of the offence, or before fornication, if that were not the consideration of the promise. If the defendant promised that another person should marry the plaintiff, it is no defence that such other person refuses; because the defendant promised on his own responsibility that which another person might prevent from being done.

Damages are peculiarly within the power of the jury in cases of this kind; 1 for courts, both in England and in this country, are very unwilling to set aside a verdict in these cases on the * ground of excessive damages. (i) And if the defen dant has undertaken to rest his defence, in whole or in part, on the general bad character, or the criminal conduct of the plaintiff, and fail altogether in the proof, it has been distinctly held that the jury may consider this in aggravation of damages. (j)2

Lord Mansfield said: "I thought the objection would not lie on two grounds. 1. That before the marriage act this would have been a good marriage, and the children legitimate by the rules of the common law. 2. I thought so, because the parties were not in pari delicto, but this was a cheat on the part of the man." After argument, the court took time to consider, and in the meanwhile recommended the parties to agree that the defendant should pay the plaintiff £500, and on a subsequent day Wallace informed the court that the parties had consented to that arrangement. See also, Baldy v. Stratton, 11 Penn. St. 316.