7 Wend. 142 | N.Y. Sup. Ct. | 1831
By the Court,
The judge misdirected the jury in instructing them that the plaintiff was entitled to recover exemplary damages or nothing; that is, if the defendant was not entirely discharged from his promise of marriage by the reprehensible conduct of the plaintiff, he could not claim a mitigation of damages on the ground of such conduct. The rule in such case is clearly, and, as I apprehend, correctly stated, in Boynton v. Kellogg, 3 Mass. R. 189: The judge who tried the cause ruled, 1st. That if the plaintiff was of bad character at the time of the promise of marriage, and that was unknown to the defendant, the verdict ought to be in his favor ; 2d. If the plaintiff after the promise, had prostituted her person to any other person but the defendant, she clearly discharged the defendant; 3d. 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
The promise was sufficiently proved. A new trial must be granted, for the misdirection of the judge, the costs to abide the event.