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, satisfied 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." Can it be said here that the verdict was the result of gross error, misconception, or undue motives on the part of the jury? or, is there anything now before the court to show even that the defendant is unable to pay the damages which the jury have awarded? In Wood v. Hurd, *2 N. C. 166 (E. C. L. R. *665] vol. 29), 3 Scott, 368, 3500l. having been awarded by a jury as damages in an action of this sort, the court refused to set aside the verdict on the ground that the damages were excessive. In that case also the will of the defendant's father was produced at the trial to show the amount of property the defendant had succeeded to, and there were contradictory statements as to the interest he took under it. As to surprise, there clearly was none. No evidence was given at the trial, which the defendant might not have anticipated; it is not suggested that he has since discovered any fresh evidence; and the court will not grant a new trial merely for the purpose of giving the defendant a chance of mitigating the damages without calling witnesses. Of all cases, an action for a breach of promise of marriage is, from its very nature, and the unpleasant ordeal the plaintiff has to go through, the most inconvenient in which to grant a new trial.

Sir F. Thesiger, Q. C., Montagu Chambers, Q. C., and Prentice, in support of the rule,-admitting, that, in order to induce the court to make the rule absolute, they must satisfy them that there had been. misconception on the part of the jury as to the facts or as to the means of the defendant,-submitted that the circumstances disclosed at the trial, and in the affidavits before the court, showed nothing to warrant the extraordinary and unreasonable amount of damages which the jury had awarded against the defendant.

CRESSWELL, J.(a)-I am of opinion that this rule should be discharged. It is not disputed that the plaintiff was entitled to a verdict: but it is said that the damages are extravagantly excessive, regard being had to the position in life of the parties, and therefore there ought to be a new trial.

*666]

I am far from denying that there may be cases in which it may be. the duty of the court to interfere with the verdict of a jury. If, for instance, it appeared that it had been obtained by means of perjury,

(a) Cockburn, C. J., had been counsel in the cause, and therefore took no part in the discussion.

that would be ground for setting aside the verdict. So, if it were shown that evidence was given which had taken the defendant by surprise, and which he could have had no opportunity to meet. It is said here that the defendant was surprised at the amount at which his property was estimated by the plaintiff's witnesses. It appears, however, that the evidence as to that consisted principally of repetitions of his own statements which even now are not denied, and the will of his late father, which was the only evidence that was fairly within the plaintiff's reach, and more, I think, than she was bound to give. But, at all events, it cannot be said that the plaintiff artfully relied on the statements of the defendant, and abstained from giving other evidence in her power, in order to mislead the jury as to the value of the defendant's property. Was it surprise that the question as to his circumstances was entered into? Certainly not: for, that is an inquiry that is invariably gone into in cases of this sort, and therefore it was his duty to be prepared for it. As to the statements made by the plaintiff's father, do these afford any ground for granting a new trial? These statements necessarily would be repeated if the case were to be sent to another jury, and would remain uncontroverted; for, the defendant cannot be called. It would be idle, therefore, to send the cause down again, there being no reason for believing that the plaintiff's father spoke other than the truth. It was the defendant's own fault that the facts before the jury remained unanswered. His mother was in court, and she might have been called to give the explanation as *to [*667 the value of the brewery which she has now given in her affidavit. The case, then, stands thus: There has been no perjury, and no fraud or misconduct on the part of the plaintiff to deprive the defendant of a fair opportunity of laying his case before the jury: nor is there any suggestion that the jury were acting under any prejudiced view, or that they misunderstood any particular piece of evidence. There has been no perjury, no surprise, no prejudice, no mistake. But it is said that the jury have awarded the plaintiff an unreasonable and excessive amount of damages. No legitimate ground being laid for it, it seems to me that we should be guilty of a most inconvenient and unconstitutional exercise of our power if we took upon ourselves to interfere with the discretion which the law has in a peculiar manner vested in the jury in cases of this sort. For these reasons, I am of opinion that the rule should be discharged.

WILLES, J.-The law as to breaches of promises of marriage is at least as old as the reign of William the Third, as appears by the case of Harrison v. Cage and Wife, Carth. 467, where, after verdict for the plaintiff, with 4007. damages, it was moved in arrest of judgment, "because this action would not lie upon the promise of marriage made by the woman, for, the law doth not intend that the man is advanced by marriage, and therefore, such a promise of marriage to him is of no

consideration in law, and by consequence no action can be founded thereon but 'tis otherwise where a man promiseth to marry a woman, because marriage in the eye of the law is an advancement to the woman." To which it was answered, and so resolved per Curiam, "that here were reciprocal promises; and therefore, as her promise to him was a good consideration to make his promise obligatory, so by the same reason his promise to her was sufficient *consideration to make her prom

*668] ise binding in this case as well as in any other mutual agree

ments." And the court "did not allow that distinction between the advancement of a man and of a woman in marriage." At the end of the case, the reporter adds this note :-"Nota. It had been moved before for a new trial, because of the excessive damages; but, upon reference to the Chief Baron Ward, who tried the cause, he certified that the promise of the woman was well proved, and that the damages were more than he expected, but that he did not think them so excessive as to set aside the verdict." The report states that it was proved that the woman was worth 30007. when the plaintiff courted her, and afterwards by the death of her brother worth double that sum. That which was laid down as law at that time is law at the present day. In Sedgwick on Damages, 2d edit., p. 208, it is said: "the clear and irresistible result of the authorities, is, that the damages in actions of contract are to be limited to the consequence of the breach of contract alone, and that no regard is to be had to the motives which induce the violation of the agreement." He then proceeds to notice an exception " in regard to damages recoverable against a vendor of real estate who fails to perform and convey the title:" and at p. 210, he adds: "To the general rule another exception also exists, that of breach of promise of marriage. In this action, though in form ex contractu, yet, it being impossible from the nature of the case to fix any rule or measure of damages, the jury are allowed to take into their consideration all the circumstances, and, provided their conduct is not marked by prejudice, passion, or corruption, they are permitted to exercise an absolute discretion over the amount of compensation. The damages in this action,' says the Supreme Court of New York, in Southard v. Rexford, 6 Cowen, 254, rest in the sound discretion of the jury, under the circumstances of each particular case.' *And this exception is perhaps one of the *669] strongest proofs of the general rule." The learned author proceeds to cite certain American cases,-Torre v. Somers, 2 N. & M. 267, Coryell v. Colbaugh, Coxe, 77, Stout v. Parll, Coxe, 79, Greene v. Spencer, 3 Miss. 318, and Hill v. Maupin, 3 Miss. 323,-which, however, are only echoes of what has been decided in our courts. Again, at p. 368, the learned author says: "The action for breach of promise of marriage, as has been already said, though nominally an action founded on the breach of an agreement, presents a striking exception to the general rules which govern contracts. This action is given as an indemnity to

the injured party for the loss she has sustained, and has been always held to embrace the injury to the feelings, affections, and wounded pride, as well as the loss of marriage: Wells v. Padgett, 8 Barb. S. C. R. 323. From the nature of the case, it has been found impossible to fix the amount of compensation by any precise rule; and, as in tort, the measure of damages is a question for the sound discretion of the jury in each particular instance,-Southard v. Rexford, 6 Cowen, 254,-subject, of course, to the general restriction that a verdict influenced by prejudice, passion, or corruption, will not be allowed to stand. Beyond this the power of the court is limited, as in cases of tort, almost exclusively to questions arising on the admissibility of evidence when offered by way of enhancing or mitigating damages. So, where it appears that the promise was made by the defendant with a view to seduce the plaintiff, this will be allowed to go to the jury in aggravation. (a) So, also, it is held that the defendant may *show in mitigation of dama[*670 ges, the licentious conduct of the plaintiff, and her general character as to sobriety or virtue, without any limitation of time whatever: Johnson v. Caulkins, 1 J. C. 116. It is also settled, that, in this action, dissolute conduct on the part of the female after the promise (or before if unknown) discharges the contract altogether. Indecent conduct before the promise, if unknown to the defendant, or after the promise, goes in mitigation of damages."(b) Here it is said that the jury were prejudiced, and in consequence of that prejudice gave a verdict which they ought not to have given. The first inquiry I should think would be, whether that prejudice was caused by any wrongful act of the plaintiff. Looking at the evidence, it would appear that the jury based their verdict upon representations made by the defendant as to the value of the property. It was stated at the trial that he was possessed of means independent of the brewery, and that the brewery was valued at 60,000%., and was worth 100,000l., and produced a yearly profit of 6000l., and that in addition he had from 16,000l. to 19,000l. worth of property on the premises. Not one of these statements is alleged by the defendant to be false; on the contrary, they are admitted on the affidavits to be true. It may be that these representations which were stated, and truly stated, by the plaintiff's father to have been made by the defendant, were made with a view to induce the plaintiff to consent to marry him. He now calls upon us to set aside the verdict because the representations so made by him with a view to their being acted upon by the plaintiff, were

(a) Citing Paul v. Frazier, 3 Mass. 73; Greene v. Spencer, 3 Miss. 318; Hill v. Maupin, 3 Miss. 323; Buck v. Strain, 2 Bibb, 341; Whalen v. Layman, 2 Blackf. 194; Wells v. Padgett, 8 Barb. S. C. R. 323. The contrary has been held in Pennsylvania: Weaver v. Bachert, 2 Barr. 30. But, there, the improper, cruel, and indecent conduct of the defendant will go to aggravate the damages: Baldy v. Stratton, 11 Penn. R. 316.

(b) Citing Boynton v. Kellogg, 3 Mass. 189; Willard v. Hone, 7 Cowen, 22; Palmer v. Andrews, 7 Wend. 142; Irving v. Greenwood, 11 E. C. L. 412; Capehart v. Carradine, 4 Strobhart, 42.

N. S., VOL. I.-29

untrue. It is doubtful, to say the least of it, whether *this might *671] not be put upon the well known rule of estoppel under the bankrupt acts, where parties are precluded from denying facts which they have once asserted or admitted to be true. There is, however, no necessity to decide that point here; for the plaintiff, having given evidence of these representations of the defendant, proceeded to put in the will of his father, under which it was stated he acquired his property. The will so put in showed the value of the brewery and plant to be about 30,000l.; and it appeared that the defendant had only a share in it. I do not think the jury could possibly have fallen into any mistake. They must have taken that will into their consideration as well as the statements made by the defendant. The plaintiff clearly was guilty of no misconduct in producing this evidence; and I do not think that the jury, -a special jury of the city of London,-were at all likely to come to an erroneous conclusion as to the effect of that evidence. The amount of damages, it is true, is large: and I have remarked that considerably larger damages are usually given by special juries of the city of London in these cases than are given by those of any other place. It may be because they are accustomed to deal in large amounts themselves, and so are led to estimate wounded feelings higher than other juries do. But I have no means of estimating the propriety of their assessment, seeing that I am unable to satisfy my mind that they have either been misled or have acted from bad or corrupt motives. I therefore agree with my Brother Cresswell in thinking that the rule for a new trial must be discharged. Rule discharged.

In addition to the American authorities cited in the foregoing case, see Bedell v. Powell, 13 Barbour, 183; King v. Kersey, 2 Carter, 402; Tubbs

v. Van Kleek, 12 Illinois, 446; Greenleaf v. M'Colley, 14 New Hamp. 303; Greenup v. Stoker, 2 Gilman, 688.

*672]

*DALTON v. DENTON. Jan. 15.

A. was possessed of a wharf, and had a mast projecting therefrom over the river. B. moored his vessel at the adjoining wharf, with her bowsprit overhanging the front of A.'s wharf, and, on the falling of the tide, the bowsprit of B.'s vessel, coming in contact with A.'s mast, broke it :Held, that B. was not responsible.

THIS was an action to recover damages for an injury alleged to have accrued to the plaintiff from the negligent mooring of the defendant's vessel.

At the trial before Cockburn, C. J., at the sittings in London after the last term, it appeared that the plaintiff was a mast-maker occupying a wharf at Shadwell, and, at the time the accident in question happened, had some men at work upon a spar which overhung the river