(i) This is very strongly asserted in the case of Smith v. Woodfine, 1 C. B. (x. s.) 660.

(j) Southard v. Rexford, 6 Cowen, 254. This was an action of assumpsit for breach of promise of marriage. The plea was the general issue, with notice that the defendant would prove in his defence, that the plaintiff had, at various times, and with various persons, specifying them, committed fornication after the alleged promise. At the trial, the defendant attempted to prove this defence, but failed. The case was tried before Walworth, Circuit Justice. The learned judge, in charging the jury in reference to the damages, said: "In cases of this kind the damages are always in the discretion of the jury; and in fixing the amount they have a right to take into consideration the nature of the defence set up by the defendant In his defence he has attempted to excuse his abandonment of the plaintiff on the ground that she is unchaste, and has committed fornication with different individuals. But it appears from the testimony of his own witnesses, that her character in that respect has not been tarnished even by the breath of suspicion. With such a defence on the record, a verdict for nominal or trifling damages may be l The money value or worldly advantage of a marriage in giving a woman a permanent home and advantageous establishment, the wound to her affections, the mortification and distress of mind she suffered from the defendant's refusal to perform, taking into account the time the engagement had subsisted, it was declared, in Coolidge v. Neat, 129 Mass. 146, might all be taken into account by the jury. See Sheahan v. Barry, 27 Mich. 217. The property and social standing of the defendant may be shown. Bennett v. Bean, 42 Mich. 346; Hunter v. Hatfield, 68 Ind. 416. - That the defendant may inspect his love-letters in the plaintiff's possession on the question of damages, see Pape v. Lister, L.R6Q.B. 242.

2 The failure to prove baseless allegations of the plaintiff's lack of chastity will aggravate, Leavitt v. Cutler, 37 Wis. 46; Reed p. Clark, 47 Cal. 194 ; while the bad habits, drunkenness, incontinence, etc., of the plaintiff, or that she was after his money merely, will mitigate damages, Van Storch v. Griffin, 77 Penn. St. 240; Hunter v. Hatfield, 68 Ind. 416; Williams v. Hollingsworth, 6 Baxter, 12; Miller v. Rosier, 31 Mich. 475. See also Miller v. Hayes, 34 la. 496.

And it sometimes happens that a jury who are obliged by the rules of law * to give a verdict for the plaintiff, render that of no avail, by finding only nominal damages. (k)

The promise is so far of a personal nature, that the breach of it gives no action to the personal representative of the party injured, unless perhaps, special damage to the estate of the decedent is alleged and proved. (l) 1 Nor does it survive against the administrator of the promisor. (m)

Whether in an action to recover damages for the breach of a promise of marriage, damages for seduction may be recovered, has been much questioned. (n) 2 By the strict rules of law, they worse for her reputation than a general verdict for the defendant. If the defendant has won her affections and promised her marriage, and has not only deserted her without cause, but has also spread this defence upon the record, for the purpose of destroying her character, the jury will be justified in giving exemplary damages." And Sutherland, J., in delivering the opinion of the Supreme Court, said: "Upon the question of damages, the charge of the judge appears to me to be unexceptionable. There can be no settled rule by which they are, in every case, to be regulated. They rest in the sound discretion of the jury, under the circumstances of each particular case; and where the defendant attempts to justify his breach of promise of marriage by stating upon the record, as the cause of his desertion of the plaintiff, that she had repeatedly had criminal intercourse with various persons, and fails entirely in proving it, this is a circumstance which ought to aggravate the damages. A verdict for nominal or trifling damages, under such circumstances, would be fatal to the character of the plaintiff; and it would be matter of regret, indeed, if a check upon a license of this description did not exist in the power of the jury to take it into consideration in aggravation of damages." In Gough v. Farr, 1 Y. & J. 477, it is decided, that the court will not, in an action for a breach of promise of marriage, grant a new trial on the ground of excessive damages, unless they be so large as to induce the court to infer that the jury were actuated by undue motives, or acted upon a misconception of the facts. And Hullock, B., said: "The principle which governs the courts in cases of this description is, not whether they think the damages too large, but whether they be so large as to satisfy the court that the verdict was perverse, and the result of gross error, misconception, or undue motives. There are, I think, no circumstances in this case to warrant such a conclusion. Poverty is pleaded as a ground for inducing the court to interfere; I am not, from the evidence, satis-fled that the defendant is unable to pay the damages; but even if he were, that would not, I apprehend, be a ground for disturbing the verdict These are questions which must depend upon the circumstances of each particular case: if there were an imputation upon the character of the plaintiff, and the damages were excessive, the court might interfere; nothing of that sort, however, appears in this case." In Goodall v. Thurman, 1 Head, 209, the rule is said to be, that the amount of damages rests in the sound discretion of the jury, who are to look to the rank and condition of the parties, the estate of the defendant, and to all the facts proven in the case, and award damages commensurate with the injury inflicted.

(k) See Baddeley v. Mortlock, Holt, 151, cited ante, p. * 65.

(l) Chamberlain v. Williamson, 2 M. & Sel. 408.

(m) Stebbins v. Palmer, 1 Pick. 71; Smith v. Sherman, 4 Cush. 408.

(n) Perkins v. Hersey, 1 R. 1.403, does not permit seduction to be shown in aggravation of damages. So Burks v. Shain, 2 Bibb, 341; Weaver v. Bachert, 2 Penn. St. 80. Contra, Paul v. Frazier, 3

1 Wade v. Kalbfleish, 58 N. Y. 282; Grubb v. Sult, 32 Gratt 203. See Shuler v. Millsaps, 71 N. C. 297, contra.

2 In Giese v. Schultz, 53 Wis. 462, damages were allowed for loss of virtue and reputation, and for mental suffering, but not for loss of time or for medical expenses.

should, we think, be excluded, where the plaintiff was in actual or constructive service, or lived in a State in which the statute law gave her an action for the seduction, and not otherwise; and the weight of authority seems to be so. Where courts hold to this rule they would exclude evidence of seduction as irrelevant. But in most cases it would be difficult to exclude this entirely, so as to keep the fact entirely from the jury, without excluding other evidence to which the plaintiff would certainly be entitled. And if the jury were made cognizant of the fact, they would probably regard it in estimating damages; and probably courts would now seldom set aside a verdict on this ground under any ordinary circumstances; especially if the seduction followed the promise and was effected by means of it. (nn) 1 And it has recently been held in England, that the court might direct the jury in assessing damages, to consider the altered position of the plaintiff by reason of the seduction. (no) It has been held in England, that a father cannot maintain an action, "per quod servitium amisit" for the seduction of his daughter; unless she * was in service to him, or owing him service, at the time. (o) And it has been held that the service must be real, genuine service, such as a parent, master, or mistress may command, and not such occasional assistance as the daughter out

Mass. 73; Conn v. Wilson, 2 Overt. 233; Matthews v. Cribbett, 11 Ohio St. 390; Goodall v. Thurman, 1 Head, 209. In Baldy v. Stratton, 11 Penn. St. 316, it is held, that though seduction cannot be given in evidence in an action for breach of promise of marriage, the improper conduct of the defendant, in which the plaintiff did not participate, may be so given in aggravation of damages. So loss of time, and expenses incurred in preparations for marriage, are grounds of damage, directly incidental to the breach of a promise of marriage, but not of special damage. In Tullidge v. Wade, 3 Wills. 18, and Foster v. Schoffield, 1 Johns. 297, it was held, that in an action for seduction, the promise of marriage could not be given in evidence. But this rule - if it be law - is not usually regarded in practice. In Wells v. Padgett, at service may be able to render to her parent by permission of the master with whom she lives. (p) But the American law is held, in some cases, not so strictly. (q) 1 In others, there seems a disposition to adopt the severity of the English law. (r)

8 Barb. 824, it is decided, that in an action for breach of promise, the seduction of the plaintiff is to be regarded as a breach of the promise in all cases in which it is followed by abandonment and a refusal to marry, and is to be considered by the jury in estimating the damages. The same doctrine is held in King v. Kersey, 2 Cart (Ind.) 402.

(nn) Espy v. Jones, 37 Ala. 879.

(no) Berry v. Da Costa, Law Rep. 1 C. P. 331.

(o) In Postlethwaite v. Parkes, 3 Burr. 1878, the plaintiff hired herself to the defendant, who seduced her and then turned her away when pregnant, and she returned to her father, and the father brought an action per quod servitium; and it was held, that the action was not maintainable.

1 That the damages will be heavily aggravated where the seduction was on the faith of the promise, see Kelley v. Riley, 106 Mass. 339; Hattin v. Chapman, 46 Conn. 607; Sauer v. 8chulenberg, S3 Md. 288; Bennett v. Beam, 42 Mich. 346; Williams v. Hol-linssworth, 6 Baxter, 12. That fact, however, must be alleged. Leavitt v. Cutler, 37 Wis. 46; Cates v. McKinney, 48 Ind. 562.

Evidence that the parents of the defendant disapproved of the engagement has been received in mitigation of damages. (s) A bill in equity has been sustained to compel a party to discover whether he has promised to marry the plaintiff. (t)