The only question in this case ¡g whether the judge did not err in receiving testimony of a promise of marriage. In Foster Schofield, 1 Johns. R. 299, ^ was held to be improper. There the judge had instructed the jury that they might give damages for the seduction and also for breach of promise; here the jury were cautioned on that subject, but the evidence being before them, they might be influenced by it even against their own determination not to consider it; this case has been recognized as correct, 2 Wendell, 464. In Tullidge v. Wade, 3 Wilson, 18, the court refused to set aside a verdict precisely similar, where the judge charged the jury not to consider the damages arising from the breach of the promise; but it is certainly a dangerous practice—the jury may give damages, notwithstanding the charge of the court, for the breach of promise, and that upon the testimony of the party interested. In Dodd v. Norris, 3 Campb. 519, Lord Ellenborough said, the daughter may be asked whether the defendant paid his addresses in an honourable way; farther than that you can on no account go.
A new trial must be granted, with costs to abide the event.