Hanks

This is an action for a breach of promise of marriage. The alleged promise is denied by the answer. The plaintiff was examined as a witness in her own behalf, and testified in substance that the agreement between the parties was, that the plaintiff should then presently surrender her person to the defendant, and that in consideration of such surrender the defendant would afterward marry her. “ He promised me that if I should give up myself to him, that he should marry me.”

1st. Upon well-settled principles the plaintiff should not have recovered upon a contract of this character. As being a contract for illicit cohabitation, it is tainted with immorality., (Story on Cont. § 458; Steinfeldt v. Levy, 16 Abb. N. S. 26, and other authorities cited in appellant’s brief.)

2nd. But this question was not made below, nor is the record here in such a condition as would, under the settled rules of practice, permit us to determine the case upon this point.

3rd. But the Court below, in stating to the jury “ the elements of injury which go to make up the sum total of damage ” which the plaintiff might be considered to have sustained, instructed them as follows: “ Next, if * * * the…