—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 plaintiffj 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*411ry. 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.