It appears in evidence that the defendant was married to a former wife, in this State, in the year 1831; that, by a decree of the Court of Chancery, the marriage between them was dissolved in 1846, on the ground of his adultery, and he was prohibited by the decree from marrying again during the lifetime of his former wife; and that such former wife was living when this cause was tried. At the time, therefore, when the defendant made the promise to marry the plaintiff, for the breach of which this action is brought, he was prohibited by a statute of this State from marrying again until the death of his former wife (2 R.S., 146, § 49); and if he had performed his contract by marrying the plaintiff within this State, such marriage would have been absolutely void (id., 139, § 5), and the defendant would have been guilty of a misdemeanor. (Id., 696, § 39.) It is obvious, then, that if the promise of the defendant had been to marry the plaintiff within this State, or had been a general promise of marriage, without any limitation as to the place of performance, it would have been illegal and void.
But the plaintiff was permitted to recover in the court below, on the ground that she was induced by the defendant to believe that a marriage between them, had in the State of New Jersey, would be lawful, and that a contract of marriage was made between them, to take place in that State. Unless this ground is tenable, the judgment must be reversed.
The contract set out in the complaint was a general promise to marry the plaintiff on request, and such was the original contract in fact made by the parties, as testified to by the plaintiff. She stated that when the engagement was entered into, nothing was said about the place of marriage, but that, four or six weeks afterward, it was suggested that the marriage take place in New Jersey, and it was so agreed. At the time of making the contract, the parties resided in the county of Westchester, in this State, and it is apparent from the testimony that, notwithstanding the arrangement that the marriage ceremony should be performed in New Jersey, they intended to retain their residence in New York.
It may be assumed, that if a marriage had taken place *Page 647 between the parties in New Jersey, in pursuance of their contract, such marriage would have been recognized and treated as valid by the courts of this State, even although the parties had gone into New Jersey with intent to evade the laws of this State. (Story on Conflict of Laws, §§ 89, 123; Putnam v. Putnam, 8 Pick., 433; West Cambridge v. Lexington, 1 id., 506.) But it does not follow that our courts will enforce an unconsummated contract of that description, or give damages for its breach.
The doctrine that a marriage is to be held valid or other wise, according to the laws of the place where it is contracted, although the parties went to the foreign country with an intention to evade the laws of their own, is an exception to the general principle of law relating to contracts, that a fraudulent evasion of the laws of the country where the parties have their domicile, will not be upheld. The exception in favor of marriages so contracted is founded on principles of policy, to prevent the great inconvenience and cruelty of bastardizing the issue of such marriages, and to avoid the public mischief which would result from the loose state in which people so situated would live. (Medway v. Needham, 16 Mass., 157, per PARKER, Ch. J.)
No such considerations of public policy arise in the case of an unconsummated promise of marriage. If made by a person who is within the prohibition of our statute, it is simply an unlawful contract, which the courts of this State will not enforce, and for the breach of which they will not award damages. It is wholly immaterial whether or not such contract is to be performed in a foreign State. The law recognizes no duty on the part of an inhabitant of this State to go beyond its limits for the purpose of evading its laws by performing an act which they expressly prohibit and declare a penal offense.
If the plaintiff was induced to believe that a marriage in New Jersey would be lawful, she was simply led to rely upon the assurance that the law is as we have assumed it to be. She was not told that an unconsummated contract of marriage between the parties, to take place in New *Page 648 Jersey, would be valid and capable of being enforced in the courts of this State, nor was she deceived by any misrepresentations or concealment of facts. She must be presumed to have known that the promise of the defendant was void until consummated, and that if he failed to perform it, the law would not give her a remedy.
I regret to be forced to the conclusion that the plaintiff cannot recover in this case, for, upon the facts found by the verdict, the defendant's conduct toward her deserves more than censure; but I fail to discover any principle of law which will sustain the judgment.
Judgment should be reversed. *Page 649