41 N.J.L. 13 | N.J. | 1879
The opinion of the court was delivered by
This is a suit for a breach of promise of marriage. At the time of the contract the plaintiff was thirty-nine, and the defendant seventy-nine years of age. It appeared from the proofs at the trial that the defendant was sexually impotent, owing to a surgical operation, and that such infirmity was known to the plaintiff. The question is whether an actionable promise could exist in view of such a state of facts.
This inquiry I think, should receive a negative response. The undertaking which is sued on is plainly against the policy of the law of the state. The statute, (Rev.,p. 315, § 4,) says that “ divorces from the bond of matrimony may be decreed in case the parties, or either of them, were, at the time of such marriage, physically and incurably impotent; and all marriages in such case shall be invalid from the beginning, and absolutely void.” The effect of this act is to put it in the power of the Chancellor to declare any marriage void on account of incurable impotency in either or both of the parties.
Taking this view of the statute, it is not possible to sanction the present action. The defendant could not bind himself to enter into a marriage which, by force of its own inherent conditions, might be declared by the Chancellor to be void ah initio. Having made such a promise, he had a locus penitentice, and could repudiate it without subjecting himself to a liability to be sued. The plaintiff should have been non-suited at the trial, and on this account the rule must be made absolute.