The defendant resists the entry of a judgment upon the verdict on three distinct grounds, which will be examined in the order in which his counsel presented them, upon the argument of the rule.
First. He contends that the plaintiff should have been called, because there was not sufficient proof of a contract to put the case to the jury.
The plaintiff produced no proof of an express promise. She offered witnesses, who testified that the defendant had visited her for three or four years; that he sought her society; that, when in company together, he usually devoted himself to her; that after her return from a Visit at Easton, in 1851, his attention to her Was very marked and exclusive ; and that he was received and esteemed by the family as a suitor intending marriage. That when she was taken by one of her brothers to see a circus, a few miles from their residence, the defendant joined them there, and solicited the brother to leave her in his charge, using this language : “ I will take care of her;” “ I will see her home;” “ she is mine, you know;” to which the brother replied, “Very well;” “I will leave her in your charge.” That their intimacy increased from that time, and entire confidence was reposed in him by the family; that after her return from Easton, and after the visit to the circus, she wrote to him, on a Saturday, informing him that she would not be at home that evening; that she went away, returned the next day, and defendant came to see her the evening of her return. Other matters were shown to the jury manifesting the confiding intimate relation which the parties held towards each other. The justice who presided at the circuit instructed *310the jury, that to maintain the action, the law did not require a female to produce direct evidence of an exp7'ess promise to marry, but that she might rely upon circumstances evidencing a legal mutual contract. He likewise, in the same connection, told them that an intention to marry, which had not grown into mutual serious promises, either express or implied, amounting to a betrothment would not support the action; and also, that a promise to marry could not be inferred from illicit intercourse. The jury were restricted to the consideration of such circumstances and facts as could tend to show that an engagement existed between the parties, and the only question in disposing of the first objection is, whether there was sufficient legal evidence of a promise to permit the case to go to the jury; if there was, its strength was to be determined by them.
The law is well settled that, to support an action of this character, a positive express promise to marry in “ totideTn verbis” need not be proved. It may be evidenced by the unequivocal conduct of the parties, and by a general yet definite and reciprocal understanding between them, their friends and relations, evinced and corroborated by their actions, that a marriage was to take place. Chit. on Cont. 537; Wightman v. Crater, 15 Mass. 1; Peppinger v. Low, 1 Halst. 384, and other cases.
A betrothment may legally be inferred from the proof of circumstances and conduct which ordinarily accompany or succeed such a relation between the sexes, pointing to a future intermarriage. Evidence of a continued course of accepted and devoted attentions by the male to the female, accompanied with an apparent dedication of the society of each to the other, and the manifestation of reciprocal confidence, and with mutual conduct consistent with proper delicacy and just marital expectations and requirements, is proper for the consideration of a jury in settling the question of the existence of a promise of marriage, whether made in express terms, or by a reciprocal unequivocal understanding between the parties that they were plighted to each other, and were bound to a future marriage.
*311Female delicacy shrinks from the stem necessity of the use of formal technical contracting language or of the proof of an express promise in terms. The privacy with which such arrangements are usually made, and the general custom of society respecting them, render the production of such degree of evidence almost impossible. Exclusive prolonged attachment, manifested by those numerous indicia of mutual preference, which are so pointed as not to be misunderstood by the parties or their friends, speaks the language of the heart, reflects the fixed mutual intentions of the heart, and may be sufficient to establish in a court of justice a serious promise of marriage between marriageable parties as satisfactorily and indubitably as a written contract or an'earwitness to an offer and acceptance could establish it. The conduct of the parties, fairly considered, may be sufficient proof to support a mutual promise of marriage. This character of proof is recognised in Clark v. Pendleton, 20 Conn. 495.
I am of opinion that there should not be a judgment of non-suit upon the first ground.
The next ground taken for resisting a judgment upon the verdict is, that there was no proof before the court and jury that the plaintiff, previous to commencing her action, requested the defendant to marry her, nor an averment in the declaration of an excuse for not making such request.
The plaintiff offered no proof of a request upon the defendant to marry her. It appeared in evidence that the parties had lived for a long time in the same neighborhood in Morris county, and that the defendant, in May, 1852, moved to the city of Newark; that he did not return to visit the plaintiff, and had no further communication with her; that, in the month of July, and before the suit was commenced, a person went to Newark to see the defendant, in behalf of the plaintiff, with authority to express her readiness to marry him, and to request him to fulfil his engagement of marriage ; that the agent (having heard a rumor that he was married, or about to be married,) saw the defendant, on the 26th or 27th of July, at his boarding place in Newark, and said to him, “ I did not expect to find you at home, as I heard you had just been *312getting married.” He asked defendant if it was true “ that he had just been taking a rib to which the defendant replied, “ I suppose that it is so,” or “ I suppose that it is a fact,” or words to that effect. The defendant then asked that person where he had heard it, or who had told him. The defendant, in a subsequent conversation on that day with his uncle John D. Wallace, in referring to the interview between the agent of the plaintiff and himself, said, “ They have got it up there that 1 am married, and I wish you had let them have it as they wanted.” It also appeared that, when he was arrested, he declared that the plaintiff was a girl of bad character, and that he never should marry her. What constitutes a breach of engagement to marry ? Is it not complete if when one party has remained and continues in readiness to fulfil the contract, the other has resolved not to fulfil it. ;
The question here raised is, whether any conduct on the part of one party, prior to the commencement of an action against him or her, will dispense with proof of a request to marry, or of an excuse for not making the request, in support of a proper averment thereof in the count. If either party to a marriage contract, with no definite time fixed for its consummation, marries another, the ability to perform the prior engagement is taken away, and a request so to do, made with a knowledge of that fact, would require the party to commit an offence against the laws of society; hence an averment of such marriage in the declaration, and corresponding proof thereof, is sufficient evidence of a breach without a request and refusal. Such act,per se, excuses the other party from the performance of all precedent conditions. An averment, however, without proof of the fact, would not avail a party any thing who, on the trial, should rely upon that fact as an excuse for omitting to make a request. Where it is alleged that the defendant has married another, the fact must he proved, 2 Saund. Pl. Ev. 666.
This plaintiff, when the suit was commenced, may have supposed that the defendant was married, and her attorney may, at that time, have intended to make in his declaration the averment of the prior marriage; but after the service of the *313writ, and before the filing of the pleading, it may have been discovered that the defendant had not married another, and that such averment, if made, could not be proved. If so, is there nothing in the evidence produced which should justify the court in ruling that a request was not necessary, and that the action could be maintained without an averment of an excuse for not making one ? Or should the plaintiff be turned out of court, and be compelled to make a request ?
What was the legal effect upon the rights of the parties of the defendant’s admission to the attorney and agent of the plaintiff that he had married another female ?
The direct influence upon Mr. Chandler was to prevent him from requiring the defendant to marry his client. It satisfied him, at the time, that the alleged contract to marry was broken by the defendant having put himself under a legal disability to perform it; and it prevented him from making a request of the defendant to perform it.
Can this party, after his admissions have been acted upon by Mr. Chandler in behalf of the plaintiff, escape from the effect of the consequences directly and naturally resulting from those admissions? Unquestionably he cannot.
Admissions which have been acted upon by others are conclusive against the party making them, in all cases between him and the person whose conduct he has thus influenced. It is of no importance whether they were made in express language to the person himself, or implied from the open and general conduct of the party. In such cases a party is es-topped, on grounds of public policy and good faith, from repudiating his own representations. It makes no difference, in the operation of this rule, whether the thing admitted be true or false, it being the fact that it has been acted upon that renders it conclusive. 1 Greenl. § 207, 208.
Deceptive and inexcusable conduct upon the part of the male towards the female may likewise excuse her from requesting him to marry. If he adopts a line of behavior inconsistent with sincere attachment and an intention to marry, and calculated to impress her mind with a belief that he has .abandoned her, that his affections have been alienated, and *314that he has resolved not to many her, he dispenses with the necessity of her establishing the breach, by producing proof of a request on her part, and a refusal by him.
The second objection against the legality of the recovery in this case is not well taken, and the plaintiff should not be non-suited.
The last ground on which the defendant relied is an alleged misdirection by the justice upon the subject of damages. »
The jury were instructed that an action for seduction would not lie in New Jersey; but if in a suit for a breach of promise of marriage, the contract and breach being sufficiently proved, “ aliunde,” it should appear in evidence that the seduction of the female had been effected after the promise, under its influence, and upon its sanctity, they might consider that as an aggravation of the damages.
I am not now prepared, upon review, to question the legality of that ruling, either upon principle or from authorities. The argument made against it was, that seduction forms a part of the measure of damages in an action per quod, &c., instituted by the person entitled to the services of the female; and, therefore, a defendant might be twice mulcted in damages for the same violation of duty. (This C. J. Wilmot, in the ease of Tullidge v. Wade, thought would be so much the better, for he ought to be punished twice. 3 Wils. 18.)
That action is a remedy for an injury done to the relative rights of a party; a parent, merely as such, cannot maintain it. Loss of services is the gist of that action, and it cannot be supported without proof of the existence of a right to the service at the time of seduction by the defendant, and of consequent damages. If the act be committed by an illegal entry upon the master’s possession, trespass may be supported without proof of loss of service or special damages ; but if the defloration be effected away from his possession, and no loss of service follows by the female’s sickening, and no pecuniary expense be caused by her subjecting her master to the payment of a physician’s or other bill, or in taking care of her, or, in other words, if conception does not follow or special actual damage be sustained by the master or parent, an action *315for the seduction cannot be maintained. In such a case, however, the purity of the victim has been tarnished, her chastity destroyed, and her prospects in life darkened. Who can be better entitled to recompense in damages for the personal injury than the female upon whom the natural and proximate results of the faithless act has fallen? Although, upon grounds of policy, an action for seduction cannot be maintained by the seduced party, yet if she gets a “ locus standi” in court by an action for a breach of promise of marriage, and makes sufficient legal proof of the promise and breach, I can conceive of no sound reason why, in estimating the damages, a jury may not lawfully take into their consideration the fact of her defloration after the mutual engagement to marry.
Exemplary damages are allowed and called for in actions of this nature. The jury are bound to no definite or precise rule of assessment, but they may give such an amount of damages, not flagrantly excessive or disproportionate to the injury, as will mark their disapprobation, and deter others from the violation of such sacred promises.
In the case of Berdan v. Kip, Spenc. Rep. 239, a judgment of the Circuit Court of the county of Bergen was reversed in this court because, in a per quod action by the father, the judge had allowed the plaintiff to prove a promise of marriage made to his daughter by the defendant, after the illicit intercourse, in explanation of the fact relied on by the defendant, that he was permitted to continue his visits in the family after the father knew of his daughter’s pregnancy. The ground on which this court put the reversal is, that a breach of a promise of marriage is a distinct cause of action in favor of the female with which the parent has nothing to do, and against which the party might not then be prepared to defend himself ; and that the evidence of it being before the jury for any purpose, they might be influenced by it in making their assessment, even against their own determination not to consider it.
The seducer is permitted, in mitigation of damages, to make use of the fact, that the parent, after having knowledge of the illicit intercourse, permitted him to continue his visits in the *316family; but, by the case referred to, the parent is not allowed to explain and vindicate his conduct by showing that partial reparation was proffered by a subsequent promise of marriage.
This decision, which seems to have been one of first impression, most certainly throws around destroyers of domestic peace and purity as much protection as should be asked in civilized society. It cannot be relied on as controlling the present case, nor does it establish that the converse of the proposition which it defends must be law.
The only report of a case where the present question appears to have been raised in this state, is found in Coxe’s Rep. 77, Coryell v. Colbaugh.
That was an action for a breach of promise of marriage, tried before Chief Justice Kinsey. After the promise was fully proved, the defendant, in mitigation of damages, offered to prove that an action had been brought by the plaintiff’s father against the defendant for seduction, and upon its being left to arbitrators, they, by the consent of parties, had gone into the whole inquiry, both as to the seduction and the promise of marriage, and had awarded exemplary damages upon a consideration of the whole case : and it was argued that, unless the evidence was admitted, a double recovery would be had.
The court refused to receive the testimony, and, in charging the jury, the Chief Justice said, that the injury complained of was of the most atrocious and dishonorable nature, and called for exemplary damages. He told the jury that they were not to estimate the damages by any particular proof of suffering or of actual loss, but to give them for example’s sake; that they must consider not only the past injury, but every consequence in future.
In a case reported in 3 Mass. 71, Paul v. Frazier, it is ruled that an action will not lie at common law by a female against her seducer, under false pretence of courtship and intention of marriage. The learned Chief Justice Parsons observed, in his opinion, that, “ as the law now stands, damages are recoverable for a breach of promise of marriage; and if seduction has been practised under color of that promise, the jury will undoubtedly consider it as an aggravation of the da*317mages. So far the law has provided, and we do not profess to be wiser than the law.”
The same result is reached in Wells v. Padgett, 8 Barb. S. C. Rep. 323; Tubbs v. Van Kleek, 12 Illinois Rep. 446; Whalin v. Layman, 2 Blackfan 194; Coun v. Wilson, 2. Overton’s Tenn. Rep. 233.
The cases relied on as maintaining a contrary doctrine, are Bucks v. Shain, 2 Bibb’s Kentucky Rep. 343; Weaver v. Berchett, 2 Barr’s Penn. Rep. 80.
The first of those cases differ from the present, in that it therein appears that the promise of marriage was mado after the seduction. Hence the seduction could not have been effected upon the faith and sanctity of the promise, and damages occasioned before the promise was made, could not he taken as consequences of the breach.
The case in Pennsylvania seems to have been put upon the case in Kentucky as an authority. Its reasoning is based upon the mutual imprudence of both parties to an illicit intercourse. The case is not satisfactory to my mind, and I am not prepared to adopt its conclusions as law in New Jersey.
Actions of this nature must be considered as anomalous, and not subject to the application of the strict rules which regulate recoveries in demands for breaches of contract regarding property. The injury to a woman from her seduction is made up of the pain she suffers from shame, the loss she sustains in her reputation and prospects of marriage, and of the depravation of her moral principle. Withholding these considerations from the mind of a jury when assessing damages for a breach of promise of marriage, upon the faith of which promise the female has been drawn from the path of virtue,- would be repugnant to our ideas of justice, and could not be defended, unless upon some inflexible principle of law inseparable from the case. Sedgwick, in his work on damages, p. 368, uses this language : “ An action for a breach of promise of marriage, though nominally founded on the breach of an agreement, presents a striking exception to the general rules which govern contracts.”
*318The portion of the charge complained of was not incorrect, and the verdict should not be disturbed.
If I entertained serious doubt upon the abstract point involved in the direction of the court at the circuit, I should not feel willing to grant a new trial. Substantial justice was done by the verdict.
The seduction of the plaintiff was a part of the res gestse, .proved without objection, and so interwoven with the evidence that if the court had directed the jury to disregard it, the verdict would not probably have been for a less amount.
The rule to show cause should be discharged with costs, and final judgment be entered upon the verdict.
Potts, J.I am not able to assent to the doctrine, that in an action for breach of promise of marriage, the plaintiff can legally give in evidence her seduction by the defendant in aggravation of damages. She cannot have an action for seduction ; she cannot recover damages directly for such an injury. This is the result of principles as well fixed and established as any in the law. She is a party to the mischief, in the eye of the law equally guilty with her seducer; and I cannot see, with this well established doctrine standing in the way, how she can be allowed to recover damages for the seduction under the form of an action for breach of promise.
But here the evidence was not excepted to at the trial, nor was that part of the charge specifically excepted to which instructed the jury that such evidence might be considered in aggravation of damages; and for this reason I am willing to concur in the result at which my brethren have arrived, agreeing with them entirely, as I do, upon the other parts of the case.