' This action was bi’ought to recover damages for breach of promise of marriage. Tbe case, on tbe evidence, is an aggravated one, because, according to tbe plaintiff’s statement, .she yielded to -the solicitations of tbe defendant under tbe promise of marriage, and permitted him to have connection with her. He set up, however, as a defense, that at tbe time of tbe promise of marriage made, if any, Ije was an infant under tbe age of twenty-one years. •
- Hpon tbe trial tbe plaintiff testified that be named tbe 16th of March as tbe day of their marriage, which was bis birthday; and, on cross-examination, said that be gave as a reason for selecting that as a day for tbe marriage that he was not of age, and would not be until that time. Tbe defendant testified as to bis age, and called bis uncle, Charles Jouin, who gave testimony to tbe same effect; all tbe evidence tending to establish, beyond doubt, tbe fact that tbe defendant at tbe time tbe promise was made was, as be claimed to be, an infant. Tbe learned justice presiding thought tbe defendant bad been guilty of perjury; taking bis testimony, upon the trial, and bis answer, into consideration, and felt it bis duty to commit him for *488the offense. Just before the testimony was closed, a discussion in reference to that took place, in which the counsel for the defendant asked the learned justice whether his client was committed for perjury on the stand or in his answer, to which the court responded, “ In the answer.” The counsel for the defendant then asked the court to charge the jury, that if they believed the defendant was under twenty-one years of age at this time, they must find a verdict for the defendant; which the court denied, and the defendant’s counsel excepted. The charge contains no allusion to the defense of infancy. It is impossible, therefore, that the verdict can stand. The defense of infancy is a good one, and though the request mentioned, abstractly considered, may be regarded as indefinite from the use of the words “ at this timenevertheless, taken in connection with the observation of the defendant’s counsel immediately preceding it, viz.: “ Our defense is that, he being under age, the promise is not binding,” makes it sufficiently definite, particularly when we take into consideration the fact that infancy was set up as a distinct defense.
In Holt v. Ward (2 Strange, 937), it was decided that a contract to marry by an infant is not void but voidable, although a person of full age, contracting with an infant, is bound by it; and hence an infant might maintain an action against an adult, but an infant defendant, was not liable. This case is approved, and the decision based upon it, in Hunt v. Peake (5 Cow., 475). In Hamilton v. Lomax (26 Barb., 615), both these cases were considered, and it was, declared that a promise of marriage by an infant was not binding, and further, that a person seduced could not maintain an action,for the seduction. The same result was declared in the case of Fiebel v. Obersky (13 Abb. Pr. N. S., 403). Even, however, if the request, made on behalf of the defendant, was so indefinite as to be objectionable and unworthy of consideration, nevertheless, as the infancy of the defendant was one of the issues presented by the pleadings and tried, any suggestion in relation to it was sufficient, because, it is the duty of the justice presiding to submit the issues created by the pleadings, and sustained by the evidence, to the jury for their consideration. There must be a mistrial where the issues are. not thus treated.
ITnfler all the circumstances, we cannot but regret that we are *489obliged to pronounce this j uclgment, because tbe defendant, on tbe evidence, unless excused by nonage, was justly punished.
Tbe judgment must be- reversed, and a new trial ordered, with costs to abide event.
Davis, P. J., and Barrett, J., concurred.
Judgment reversed, and new trial ordered, costs to abide event.