other woman, named Maggie Walder. The petition filed in this present case gives the defendant's name as Margaret Knott, and her maiden name as Margaret Walder. There seems to be no question about the identity of the parties. The object of the first-mentioned suit was to have the marriage between the petitioner, Lena Knott, and the said John J. Knott annulled, and to compel said John J. Knott to provide for the support and maintenance of the said Lena and the children of the union of the said Lena and John.

The petition of Lena alleged that after the Philadelphia marriage she and Knott lived as man and wife for a year and a half, when Knott eloped with a woman named Rose Sonnebrun, whom he married, and with whom he lived in Weehawken; and that Knott was indicted by the grand jury of Hudson county for bigamy, and pleaded guilty, and was fined. The petition of Lena Knott further alleged that the said John J. Knott, before his marriage to her, was also married to one Clara Seeker, from whom he had never obtained a divorce; and that Knott, after being arrested, confessed that he had four wives, all living.

The answer filed by Knott to the petition of Lena admits his marriage to Maggie Walder on July 4, 1893, and that he had never been divorced from her, and that she was still his legal wife. The answer further admits that marriage ceremony with Lena in Philadelphia, and that he lived with Lena in Philadelphia for a short time, and afterwards in Paterson. The answer sets up no denial of the other charges in the petition, but interposes a single defense to the effect that the petitioner, Lena Knott, had full knowledge, when she married the said John J. Knott, "that he was already married to the said Maggie Walder, from whom he had never been divorced."

In this suit of Lena Knott to have her marriage annulled a motion was made on her behalf for alimony and counsel fees pendente lite, on which motion affidavits were presented to the court, which are now on file in the cause; among them the affidavit of John J. Knott. This affidavit admits his marriage to Lena in Philadelphia, and the birth of a daughter by her; also admits that he married Maggie Walder in 1893, and lived with her until October, 1895, when, as the affidavit states, the said Maggie deserted him; and that neither party had obtained a divorce, but that she, the said Maggie Walder, was "his legal wife"; that on July 5, 1896, "while under the influence of liquor," he was married to Clara Seeker, and lived with her for about four hours after the marriage, when he left her, but that neither party had obtained any divorce. The affidavit further alleges that the said Lena represented to him, the said John J. Knott, that, as Maggie Walder had remarried, he was thereby allowed to marry again. The affidavit refers to the

indictment for bigamy so as to practically admit the fact.

Our divorce act provides that, if it shall appear to the court that both parties have been guilty of adultery, no divorce shall be decreed. Ordinarily, the defense of recrimination is presented by the defendant; but a divorce suit is a somewhat unique judicial proceeding in this respect: that the state has an interest to such an extent that it is often referred to as a third party to the suit. It is the duty of the court to see that divorces are not fraudulently obtained by parties who are not entitled thereto. It is not the duty of the court to conduct an investigation into the conduct of the petitioner in a case like this because of rumors or suspicions that he had been guilty of adultery, which would bar him of his divorce, if the same were proved in the case. But it happens in this instance that sworn testimony, including the affidavit of the petitioner, John J. Knott, himself, has been laid before the court recently in another cause, apparently proving that the said Knott has not only committed adultery since his marriage with the defendant, from whom he now seeks to be divorced, but that he has committed a series of adulteries with different women, and that he has also committed the crime of bigamy or polygamy, once in the state of Pennsylvania, and probably twice in the state of New Jersey. The court cannot ignore these depositions now on file in the office of its clerk.

Of course, no adjudication against the petitioner would be made upon the testimony above referred to, which has not been presented in this cause. The testimony should be brought into the cause, and the petitioner should have an ample opportunity to meet it.

An order of reference will be advised to the same master who has already reported, in which order the master will be specially directed to inquire and report as to the alleged adulteries of the said John J. Knott with the said Clara Seeker, Lena Knott, and Rose Sonnebrun.

(69 N. J. L. 224)

ZELIFF v. WHRITENOUR. (Supreme Court of New Jersey. Feb. 25, 1903.)

BY

TOWNSHIPS-BOARD OF FREEHOLDERS-AP-
POINTMENT
TOWNSHIP COMMITTEE -
DECLARATION OF VACANCY.

1. Under Act March 7, 1901 (P. L. 1901, p. 49), providing that a vacancy existing in the office of chosen freeholder in any township may be filled for the unexpired term by the township committee, the township committee cannot appoint to the board of chosen freeholders unless there is an actual vacancy for one of the causes specified in the act. Their declaration that such a vacancy exists. where contrary to fact, and consequent appointment thereon, is a nullity.

Information in the nature of quo warranto on the relation of Daniel P. Zeliff against Edgar Whritenour. On demurrer to plea. Demurrer overruled.

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

Francis Scott, for relator. James G. Blauvelt, for defendant.

It

PER CURIAM. By the second section of a supplement to the act to incorporate the chosen freeholders in the respective counties of this state, approved March 7, 1901 (P. L. 1901, p. 49), any vacancy existing in the office of chosen freeholders in any township, by reason of resignation, removal, death, or any other cause, may be filled for the unexpired term by the township committee. appears from the information in this case that the respondent was duly elected a chosen freeholder of the county of Passaic from the township of Manchester, and that while occuying this office the township committee, after formally declaring his office vacant upon the ground that he had removed out of the state, appointed the relator to fill the alleged vacancy for the unexpired term. The defendant, in his plea, denies that his office ever became vacant, and asserts that ever since his election he has continued to be, and still is, a resident of the township of Manchester. This plea contains a complete answer to the information. The demurrer admits the facts set out in it to be true. power of the township committee to appoint a member of the board of freeholders for this township depends upon the existence of the conditions prescribed in the statute. Their declaration that one of the conditions exist-the declaration being contrary to the fact-affords no ground for action on their part, and such action is a nullity.

The

The defendant is entitled to judgment on the demurrer.

(69 N. J. L. 221)

FULTON v. GRIEB RUBBER CO. (Supreme Court of New Jersey. March 2, 1903.)

INJURIES TO SERVANT-SAFE PLACE TO WORK -INSPECTION.

1. The insulation on an incandescent lamp wire, which hung from the ceiling in a factory, became worn away from a small section of the wire, and the wire was blown by the wind against a steam pipe, whereby a servant received an electric shock and sustained injuries. Held, that there could be no recovery against the master because he had not inspected the wire; it appearing that the electric light system had not been installed more than a few months, and defendant not having been bound to anticipate the probability of plaintiff's being so injured.

Action by Colton Fulton against the Grieb Rubber Company. Verdict for plaintiff. Rule to show cause made absolute.

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

Linton Satterthwaite, for plaintiff. G. D. W. Vroom and E. R. Walker, for defendant. 54 A.-36

PER CURIAM. Plaintiff was injured while working at a "mill" in the defendant company's factory. His story of the accident was that as he was standing at his mill, with his hand resting upon its frame, an incandescent electric light wire, which was suspended from the ceiling, and which, when not swaying, hung down at a distance of about two or three feet from the mill, was blown by the wind against a steam pipe connected with the mill thereby momentarily charging the mill with electricity; that, by reason of the contact of his hand with the frame of the mill, he received an electric shock which caused him to lose his balance and fall against the rolls of the mill; that his hands were caught in them, and so severely crushed as to necessitate amputation. There was a verdict for the plaintiff. We think it should be set aside, for two reasons: 1. It rests upon the conclusion that the accident happened substantially in the way described by the plaintiff; i. e., by his receiving an electric shock, communicated from the incandescent light wire in the way described. This conclusion is against the preponderance of the evidence.

2. The evidence shows no negligent act or omission on the part of the defendant which contributed to plaintiff's injury. The incandescent light wire, when it was originally installed, was properly covered with insulating material, but at the time of the accident this material had been torn or worn away from a small section (about half an inch) of this wire at the point where it was said to have come in contact with the steam pipe connected with the mill on the occasion of the accident. The alleged negligence of the master (the defendant company) was its failure to inspect this wire. The duty of a master to make inspection of appliances furnished to workmen, or located in the place in which they are working, does not require such inspection to be continuous. It is to be made at reasonably frequent intervals. Where the appliance is not normally subjected to any wear and tear, and there is no apparent likelihood of its getting out of order, or, if it does so, of its being in the slightest degree dangerous to employés, much less frequent inspections by the master are necessary, in the discharge of his duty to his servants, than when the appliance is a machine in constant use, and dangerous to them when out of order. In this case the electric lighting system (including this incandescent wire) in the defendant company's factory had only been installed for a few months. There is nothing in the case to suggest that the insulating material which covered this wire I would not have remained intact for years, unless injured by some outside agency. Nor is there anything in the case which will justify the conclusion that the defendant, in the exercise of a reasonable prudence, should have anticipated the probability of its being so injured. For this reason, the failure of

the defendant to inspect this wire between the time of its installation and the time of the plaintiff's accident was not negligence. For both reas; us, the rule to show cause should be made absolute.

(69 N. J. L. 11)

SMITH V. THOMAS IRON CO. (Supreme Court of New Jersey. March 18, 1903.)

SERVANT-INJURIES-WARNINGS-CONTRIBUTORY NEGLIGENCE.

1. It was not necessary for the owners of a mine to warn an employé of the dangers he might encounter if he wandered off the regular path in going to his work, where they furnished him a guide to take him to the place of work.

2. A miner who had always before been conducted to his place of work by a guide, and who, on a particular occasion, finding that the guide had gone on before, attempted to reach the place alone, though the path was dark, was guilty of contributory negligence as matter of law, and could not recover for injuries sustained by falling into a pit alongside the path.

Action by Patrick Smith against the Thomas Iron Company. Verdict for plaintiff. On rule to show cause. Rule made absolute.

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

Edward A. & William T. Day, for plaintiff. William D. Wolfskeil and William Fackenthall, for defendant.

GUMMERE, C. J. This is an action for personal injury. The trial resulted in a verdict for the plaintiff. The facts upon which his right to recover was rested are accurately summarized in the brief of his counsel as follows: He was engaged by the defendant company to work as a miner in one of its mines on March 2, 1900. The place where he was set to work was in the interior of the mine. To reach this place it was necessary for him to descend, by means of a ladder, a shaft sunk vertically in the earth to a level in the mine. After leaving the shaft, it was necessary for him to go through the level, which was dark, for a distance of 250 feet, and then turn to the right into an opening, down which a passage was had to a lower level, upon which was the place where he was set to work. At a point about 150 feet from the shaft there was another opening on the right of the level, which was the mouth of a "stope" or pit about 10 feet deep. The plaintiff had been taken down into the mine, to the place where he was set to work, on the first day, and on all subsequent trips, until the morning when he was injured, in the charge and care of one Roberts, called a "chargeman." He had never been allowed to go alone. He had never had his attention called to the first opening to the right in the level, and had not been warned of the danger thereof. On the morning of the 10th of March the men in the gang who were working under the supervision of the chargeman,

ness.

including the plaintiff, had gone to the superintendent's office with a demand for higher pay, and, in consequence, there was a delay of about 15 minutes in going to work. After leaving the superintendent's office, there was a scramble on the part of the men in the gang for the first opportunity to get down into the mine. In the scramble the plaintiff was left to the last, and when he reached the level he was alone, and in darkIn going along the level, probably mistaking the first opening for the one further on, and which he should have taken, he turned into it, fell down into the "stope," and was seriously injured. On these facts the trial court left it to the jury to determine, first, whether the injury resulted from any negligence by the defendant in the performance of any duty which it owed to the plaintiff as his employer; and also whether the plaintiff, by any negligence on his part, contributed to the injury. The jury resolved both of these questions in favor of the plaintiff. A rule to show cause was allowed, in order that it might be determined whether, upon the facts stated, the conclusion of the jury can be supported.

The defendant owed to the plaintiff the duty of exercising reasonable care to provide him with a safe means of passage to and from his work. The contention of the plaintiff is that the failure of the defendant to call his attention to the existence of the first opening to the right in the level, and the danger which might result from his not avoiding it, was evidence of a failure on the part of the defendant to perform this duty. We do not think so. As has already been stated, up to the time of the accident the plaintiff had always been taken down into the mine, to the place of his work, in the charge and care of Roberts. Having furnished him with a guide, it was not necessary for the defendant to warn him of the dangers which he might encounter if he wandered off from the path; for, so long as he remained in the charge of his guide, he was safe. The only ground upon which responsibility for the plaintiff's accident can be imposed upon the defendant company is that in performing the duty of guiding the former to the place of his work, Roberts, the chargeman, was acting as the representative of the company, and not as the fellow servant of the plaintiff (Belleville Stone Co. v. Mooney, 61 N. J. Law, 253, 39 Atl. 764, 39 L. R. A. 834), and that his failure to perform that duty on the day when the plaintiff was injured was the proximate cause of the latter's accident. It is not necessary, however, for the determination of this case, to stop to consider whether the facts referred to bring it within the principle laid down in the Mooney Case, and establish the negligence of the defendant; for, conceding that they do, still the plaintiff is barred from a recovery by his own negligence, on the evidence submitted. When he reached the bot

tom of the shaft he found that Roberts, whose duty it was to pilot him to the place where he was to work, had gone on before, leaving him alone. The level along which his path lay was in darkness. Having no knowledge of the dangers which he might incur if he should stray from the path, with no one to guide him, without sufficient light to illumine it, he attempted the foolhardy experiment of finding his way, in the darkness, to the place of his work, without assistance. That in doing this he exhibited a reckless disregard of his own safety seems too plain for argument.

The rule to show cause should be made absolute.

(69 N. J. L. 219)

VOGEL V. NORTH JERSEY ST. RY. CO. (Supreme Court of New Jersey. Feb. 25, 1903.)

INJURY TO CHILD-SUI JURIS-CONTRIBUTORY
NEGLIGENCE-ALLOWING CASE
TO BE OPENED.

1. Whether a child seven years old, run over by a street car, was sui juris, and, if so, whether, considering his years, he was guilty of contributory negligence, are questions for the jury.

2. Allowing plaintiff, after closing his case, to open it and introduce evidence, is matter of discretion, and not reviewable.

Error to Circuit Court, Essex County. Action by Joseph Vogel against the North Jersey Street Railway Company. Judgment for plaintiff. Defendant brings error. firmed.

Af

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.,

Chauncey H. Beasley, for plaintiff in error. Samuel Kalisch, for defendant in error.

PER CURIAM. The defendant in error, the plaintiff below, sued to recover for personal injuries received by him by being run over by a car of the defendant company. At the close of the plaintiff's case there was a motion to nonsuit him on the ground that he was sui juris and was guilty of contributory negligence. The court refused to nonsuit, and this is assigned as error. We think the nonsuit was properly refused. The plaintiff was a little over seven years old. Whether he was or was not sui juris was a question for the jury. So, too, it was for the jury to say, even if they found him to be sui juris, whether, taking into consideration his tender years, he was guilty of contributory negli gence.

It is further alleged for error that the trial court, after the plaintiff had closed his case, permitted the case to be opened, and further evidence introduced on his behalf. Such action on the part of the trial court is purely discretionary, and affords no ground for re

view.

As the evidence stood at the close of the case, it was clearly for the jury to determine

1. Under the Evidence Act, P. L. 1900, p. 363, §4, making illegal any testimony given by a party to an action as to any transactions with a testator represented in such action, save on certain conditions, includes the testimony of plaintiff in an action against an executor for plaintiff's services as nurse to testator.

Action by Dorcas Baker against Charles T. Bancroft, as executor, etc. Judgment for plaintiff. Rule to show cause made absolute.

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

Howard Carrow, for plaintiff. John W. Wescott, for defendant.

PER CURIAM. The plaintiff sues to recover for services rendered by her as nurse to the defendant's testator. She was sworn as a witness in her own behalf, and was permitted to testify, against objection, to various services rendered by her to him, made necessary by his illness.

The proviso contained in the fourth section of the evidence act, as revised in 1900 (P. L. 1900, p. 363), makes illegal testimony given by any party to an action as to any transactions with or statements by any testator or intestate represented in such action, except upon conditions which were not present in this case. That services rendered by the plaintiff as nurse to the testator of the defendant are transactions with such testator within the meaning of this statutory provision was decided by this court in the case of Dickerson v. Payne, 66 N. J. Law, 35, 48 Atl. 528.

The admission of this testimony was harmful error. The rule to show cause should be made absolute.

(69 N. J. L. 227)

HATCHER v. PENNSYLVANIA R. CO. (Supreme Court of New Jersey. Feb. 25, 1903.)

INJURY TO PASSENGER-NEGLIGENCE-EVIDENCE-SETTING ASIDE VERDICT.

1. A passenger's story as to how he was injured being entirely uncorroborated, and the overwhelming weight of the testimony showing that he was injured solely because of his own negligence, a verdict for him should be set aside.

Action by Reuben R. Hatcher against the Pennsylvania Railroad Company. Heard on rule to show cause. Rule made absolute.

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

John T. Dunn, for plaintiff. Alan H. Strong, for defendant.

PER CURIAM. The plaintiff was injured while alighting from a train of the defendant company at its station at Elizabeth. His story, as told upon the witness stand, is that after the train had come to a stop he went upon the platform of the car to alight, that before he had done so a brakeman pushed him from the train, and that just as he was pushed the train started up, and he was thrown off. His story is entirely uncorroborated. The overwhelming weight of the testimony contradicts the plaintiff's story, and shows that he was injured solely by reason of his own negligence; that he was not pushed off the train, but that he either stepped or jumped off while it was still in motion, and before it had come to a standstill.

The rule to show cause should be made absolute.

(69 N. J. L. 15) VAN ALSTYNE v. FRANKLIN COUNCIL, NO. 41, J. O. U. A. M.

(Supreme Court of New Jersey. Feb. 27, 1903.)

BENEFIT INSURANCE-FORFEITURE OF CERTIFICATE-ACTIONS-PLEADINGS

GENERAL ISSUE.

1. Under Prac. Act, § 126 (Gen. St. p. 2554), providing that, where plaintiff avers performance of conditions precedent generally, defendant shall not be permitted to deny such averment unless he specifies the particular condition precedent the performance of which he intends to contest, a defense of forfeiture of a benefit certificate for nonpayment of assessments within the time required was not available under the general issue.

Error to Union Circuit Court.

Action by William Van Alstyne against Franklin Council, No. 41, Junior Order of the United American Mechanics. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

Argued November term, 1902, before GUMMERE, C, J., and VAN SYCKEL, FORT, and PITNEY, JJ.

Fergus A. Dennis, for plaintiff in error. George W. Moy, for defendant in error.

GUMMERE, C. J. This action was brought to recover the sum of $250 death benefits due from the defendant, a subordinate council of the Junior Order of the United American Mechanics, to the plaintiff, as the beneficiary of Harry B. Van Alstyne, a deceased member of said council. The council at the trial set up as a defense that by reason of the ac

11. See Insurance, vol. 28, Cent. Dig. § 1998.

tion of the deceased member in permitting his dues to remain in arrears and unpaid for a period of 20 weeks preceding his death all rights in the benefit certificate had been forfeited by force of article 9 of the constitution of the council, which provided that "a member of this council who is thirteen weeks or more in arrears for weekly dues, forfeits all his rights and privileges, except that of being admitted to the council chamber during its session." This defense was overruled by the trial judge on the ground that the only plea filed by the defendant was that of general issue, and that no such defense could be made under the plea. This ruling was clearly a proper one. Under the 126th section of our practice act (Gen. St. p. 2554), where the plaintiff avers performance of conditions precedent generally, the defendant is not permitted to deny such averment unless he specifies in his plea the particular condition precedent the performance of which he intends to contest. That this statutory provision bars a beneficial society from avoiding liability on a benefit certificate on the ground that the deceased member failed to pay his assessments within the time required by its constitution and by-laws, unless such defense is specially pleaded, has been decided by the Court of Errors and Appeals in the cases of Supreme Assembly v. McDonald, 59 N. J. Law, 248, 35 Atl. 1061, and Ottawa Tribe No. 15 v. Munter, 60 N. J. Law, 459, 38 Atl. 696.

There being no error on the part of the trial court, the judgment under review should be affirmed.

(69 N. J. L. 220) ROSENGARTEN v. CENTRAL R. CO. OF NEW JERSEY.

(Supreme Court of New Jersey. Feb. 25, 1903.)

WITHDRAWAL OF JURORS-NEW TRIAL.

1. Withdrawal of a juror by direction of the court produces a mistrial, so that, there not having been any trial, a new trial cannot be directed.

Action by Samuel G. Rosengarten against the Central Railroad Company of New Jersey. Heard on rule allowed to defendant to show cause. Rule discharged.

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

Joseph H. Gaskill, for the rule. John W. Wescott and Herbert A. Drake, opposed.

PER CURIAM. This was an action brought by the plaintiff to recover damages for the destruction of his growing timber, grass, etc., by fire communicated from one of the engines of the defendant company. At the close of the plaintiff's case, defendant's counsel moved for nonsuit upon the ground that the proofs submitted did not cor respond with the allegations contained in the