Black a. Foster.

in this. It was the act of both, and contained their joint declara tions, and was competent testimony as to both.

The next exception was to the admission of the undertaking put in in this cause, on the return of the property to the defendants.

This undertaking was given in the cause as an act or pro ceeding therein, under section 211 of the Code, which provides, that at any time before delivery of the property to the plaintiff, the defendants may require a return thereof, upon giving the undertaking prescribed; and on such undertaking being given, he is entitled to a return.

Both of the defendants in this cause appeared and answered, and by giving this undertaking both claimed a return of the property. It was an act or proceeding in the cause by both defendants, and as such was competent testimony to go to the jury to disprove the allegation of their answer, that they did not detain the property described in the complaint. It was for the jury to say how much weight it was entitled to, and how far it went to establish the point that both defendants claimed to detain the plaintiff's property.

We think the justice properly refused to dismiss the complaint as to the defendant D. C. Foster. There was certainly some evidence to show that he claimed, with the other defendant, to retain the plaintiff's property, and the jury by their ver dict have found that he did so detain it. We think there was evidence to sustain such finding, and that we ought not to disturb their verdict. We see no error in the charge of the jus tice, or in the refusal to charge as requested.

The judgment therefore appealed from must be affirmed with

costs.

Blattmacher a. Saal.

BLATTMACHER a. SAAL.

Supreme Court, Second District; General Term, October, 1858. BREACH OF PROMISE.*-CAUSE OF ACTION.

A complaint for breach of promise of marriage is not demurrable because it shows that the defendant was married at the time of the promise, if it appear that the fact was unknown to the plaintiff.

The defendant was married at the time of the promise, and deceived the plaintiff by representing that he was unmarried.

Held, that the agreement was not illegal on her part, and the defendant's disqualification to perform such a promise was no defence.

* LIEFMANN α. SOLOMAN.-(New York Superior Court; General Term, 1858.)-This action was brought by a female for breach of promise of marriage. The answer was as follows: That after the making of the alleged promises by the defendant to the plaintiff, set forth in the complaint in this action, and before the commencement of this action, that is to say, on or about the 1st day of August, in the year 1857, and at the city of New York, he the defendant, being then sole and unmarried, and ready to marry her, she the plaintiff then and there refused, and up to and at the time of the commencement of this action, continued to refuse to marry him, the said defendant. And the defendant says that the plaintiff has not sustained any damages stated in the complaint.

To this answer the plaintiff demurred. At special term it was ordered that plaintiff have leave to withdraw the demurrer on payment of costs, otherwise judgment to be for the defendant on the answer. The plaintiff appealed to the general term.

C. N. Black, for the appellant.-I. The answer does not deny any material allegation of the complaint, or set up any new matter which may be regarded as a defence or counter-claim.

II. The most that can be said of the allegations in the answer is, they are inconsistent with the allegations in the complaint; such allegations do not amount to controverting those allegations. (Wood a. Whiting, 21 Barb., 190; Code, §§ 149, 168.)

III. The allegations in the answer cannot be regarded as new matter. a Ruckgaber, 3 Duer, 685.)

(Radde

IV. The allegations in the answer confine the alleged refusals of the plaintiff to marry the defendant to the city of New York, which, if true, are not sufficient to controvert the allegations in the complaint in that respect, or raise an issue upon the pleadings.

V. An offer to marry on the part of the defendant, after a refusal on his part,

Blattmacher a. Saal.

Appeal from judgment of the City Court of Brooklyn.

The action was by a female for breach of promise of marriage. The complaint alleged that the defendant, being already married, represented himself to the plaintiff to be unmarried, and so contracted a marriage promise with her.

Within a few days of the time the marriage was to have been consummated, she learned the fact of his existing marriage, and commenced thereupon the present action. The defendant demurred, on the ground that as he could not legally make such a promise while married, and a performance of the contract would be illegal by reason of his existing marriage, such an action could not be maintained.

Culver, city judge, overruled the demurrer, and the damages of the plaintiff were assessed by a jury at five thousand dollars. The defendant appealed to the Supreme Court.

G. Miller, for the appellant.

G. L. Ford, for the respondent.

BY THE COURT.-EMOTT, J.-This complaint states sufficiently the promise to marry by the defendant, and his representation that he was unmarried and competent to marry the plaintiff. It was obviously unnecessary to allege that he knew this representation to be untrue, when he is alleged to have been in fact married. It then avers that the plaintiff, confiding in this representation and promise, continued, and still is unmarried, and that she had no knowledge or information to lead her to believe that the promise and representation of the defendant were false or fraudulent; and it avers a breach of the defendant's representation and promise, and damages.

This is a good cause of action, and the plaintiff may recover, either upon the deceit and damage, or upon the contract and promise to marry, which implied and involved a promise and agreement that the defendant was competent legally to mar

would be no defence to the alleged offer and refusal in the plaintiff's complaint. (1 Parsons on Contr., 551.)

P. J. Joachimsson, for the respondent.

After consideration, the court affirmed the order made at special term, with costs.

Hull a. Wheeler.

ry. It is said that the performance of the agreement was impossible and illegal. But this was unknown to the plaintiff, and her agreement was not illegal. It was to marry the defendant, if he was, and believing him to be, unmarried. It cannot be possible that she may not recover the damages which she has sustained in consequence of having innocently made this engagement, and remained unmarried to perform it. The parties are not in pari delicto, and the defendant must restore the plaintiff to what she has lost by his deceit, and his promise to do what he could not legally perform.

What he agreed to do was not an act illegal in itself. If it had been, no action could have been maintained upon the promise. But he promised to do an act which it was unlawful for him to consummate with the plaintiff, only because he was legally disqualified from doing it; and this was unknown to the plaintiff.

There are two cases in the English courts directly in point. (Wild a. Harris, 7 C. B., 999; and Millward a. Littlewood, 1 Eng. L. & E., 408.) The reasoning of the Barons of the Exchequer in the latter case, particularly the opinion of Baron Parke, is entirely satisfactory to us.

The judgment of the City Court must be affirmed; but the defendant may withdraw his demurrer, and put in an answer within ten days after notice of the filing of the remittitur, on payment of all the costs since the demurrer. The judgment may stand as security.

HULL a. WHEELER.

Supreme Court, Sixth District; General Term, November, 1858. CONTRACT-LAW OF PLACE.-EXAMINATION OF PARTIES.— COMMISSION.

A promissory note, made and indorsed by accommodation indorsers for the maker's benefit, all the parties being residents of this State, and the note being made, dated, and indorsed here, but being drawn payable in Connecticut, was sent by maker, according to previous arrangement, to a person in Connecticut to be discounted, and the proceeds were remitted to the maker here.

Hull a. Wheeler.

Held, a Connecticut contract,-to be governed, as against both maker and indorsers, by the usury laws of that State.

That the plaintiff is not the owner and holder of the note in suit, may be proved under a general denial of the complaint, which alleges that he is.

A party to an action, although a non-resident, is not entitled to be examined upon commission upon his own behalf, if the adverse party has not given notice of his own intention to be examined as a witness.

Motion for judgment on a verdict taken subject to the opinion of the court.

This action was brought upon a promissory note, which was made and indorsed at Norwich, Chenango county, N. Y., by residents of that place; and it was in the words and figures following, viz. :

1500.

NORWICH, November 1, 1856.

Five months from date I promise to pay to the order of S. R. Perlee, at the Mystic Bank, Connecticut, one thousand five hundred dollars, for value received.

(Indorsed) S. R. PERLEE,

N. P. WHEELER,

T. MILNER.

(Signed) J. R. WHEELER, Jr.

The plaintiff was a resident of Stonington, Connecticut. The note was indorsed for the accommodation of the maker, to en able him to borrow. He sent it by mail to Jesse Y. Hull, at Stonington, for the purpose of having John W. Hull, the plaintiff, dis count it, in pursuance of a previous arrangement. The plaintiff let Jesse Y. Hull have $1416.75 for the note, at Stonington, on the 28th day of November, 1856; and the latter on the same day sent that money by express to the defendant, at Norwich, N. Y., where it was received by him.

The amount of money the plaintiff retained as interest on the note was greater than was permitted by the laws of either New York or Connecticut. The usury laws of the former State prohibited the plaintiff from recovering any thing on the note, if it was a New York contract; but if it was a Connecticut contract, the laws of that State permitted the plaintiff to recover the amount he loaned on the note, without interest.

The making, indorsing, and protest of the note were stated in