suit for divorce might have been collusive, I made in the preparation of and trial of this and the procuration of the divorce might in issue. As one of my associates says, it is a reality have been by consent. Now this state saying in the South that "two dance in comof things was liable to work, and in many pany, but one must pay the fiddler alone," instances did work, an injustice against in- and it would seem highly proper that Mr. nocent persons. Now, the object of the stat- Huntoon should occupy that situation. He ute was manifestly and notoriously to remedy is a man of very large income, great wealth, that wrong. Hence the new section intro- I am told, and he has put usduced into the statute, as follows: "In actions for divorce, because of adultery, it shall be lawful for the chancellor, in his discretion, at any time before final decree, to allow any person charged in the pleading with committing adultery with either of the parties in the suit to intervene for the purpose of defending himself or herself against the charge so made." Now, here it is quite manifest that the purpose for which the defendant may intervene is limited to the defense against the charge. It seems to me quite clear that the intervener has no right to challenge the jurisdiction of the court over the person of the real defendant. Besides, by intervening generally, as the defendant did in this case, without any protest as to the jurisdiction, he appeared generally and submitted himself to the jurisdiction of the court, and that intervention was made before the plea of the jurisdiction was interposed. Although he did not have notice of the trial of that plea, he is presumed to have kept a general watch on the progress of the cause, and, if he had any desire or intention to question the jurisdiction of the court, he might have added to his extremely short pleading a plea of that kind. I was unable, after hearing the very ingenious argument of Mr. Strong, to see the least merit in it, and subsequent reflection has not changed my view. Mr. Lindabury: Now, if your honor please, we ask for judgment for costs against the co-respondent Huntoon. The Court: I have already had occasion to examine that question, and by the advice of the chancellor, after submitting the matter to him, I gave judgment in a case similar to this for costs and counsel fee against the co-respondent, hence you are entitled to that judgment. It will not include, however, the cost of the proceedings to test the jurisdiction of this court. You will have costs against the co-respondent from the time he intervened, but not the costs of that issue of jurisdiction. Mr. Lindabury: No, your honor; preparation of this case, trial of this case, which he did make by voluntarily coming into it. The Court: In the case in mind a man came in afterward, and I gave the whole costs against him. The Court: That don't make any difference. Mr. Lindabury: No, but he has helped to put us to great expense. We have been required, as your honor will remember, to pay the defendant, his copartner in this defense and the circumstances that led to it, $3,000. The Court: I don't consider anything of that kind. I don't take that into consideration here, except as measuring the importance of the cause. Mr. Lindabury: You are making an allowance to the petitioner in this case on account of the costs and on account of the counsel fees which he has incurred, and it strikes me that it is a matter that may be taken into account that the petitioner has been compelled to disburse that sum as one of the items of the prosecution of the cause, and one for which the defendant Huntoon is responsible. I ask that your honor allow us judgment against Huntoon for the taxable costs of the cause and for a counsel fee commensurate with the importance of the case. The Court: Will you please mention the amount of counsel fee you think you ought to have? Mr. Strong: Your honor understands me, of course, as insisting that no order should be made against Mr. Huntoon. Mr. Lindabury: We think the allowance of counsel fee should not be less than $5,000. Mr. Strong: It seems to me that the figure suggested is absurd, in the first place; but, I started to say before, there is no authority in the court, by statute or otherwise, that 1 know of, to make any order whatever for the expenses of the suit, counsel fees, or otherwise, against Mr. Huntoon, if it were a matter of discretion, nor has Mr. Huntoon in any way enhanced the costs of this suit. I desire to direct your honor's attention to that point. He has not appeared here and offered independently testimony such as to increase the burden of the petitioner's case. The proof which the petitioner has made in this case he was obliged to make if Mr. Huntoon had not appeared, and under such circumstances, where the appearance of the corespondent has not aggravated the expense to the complainant, there seems to be no reason for the exercise of a discretion, if the court has a discretion, to impose upon the Mr. Strong: Does your honor care to hear co-respondent any of the expenses, which he from Mr. Huntoon's counsel. The Court: I only tell you what I did after consultation with the chancellor. I will give you the name of that case now if you wish it. Mr. Lindabury: I can see no reason why Mr. Huntoon should not pay all the costs would otherwise have incurred-would otherwise have incurred necessarily. The Court: I think that, when a man makes himself a defendant, under the statute he becomes liable for the petitioner's costs, and also for counsel fees. I think 1 840 (72 N. J. E. 941) DUKE v. DUKE. will take into consideration the fact that the defendants did not go very far with their defense, Mr. Lindabury, not far enough to (Court of Errors and Appeals of New Jersey. trouble you much. Mr. Lindabury: They made us believe they were going to, and we prepared to meet it. Mr. Strong: Gave you an awful scare, didn't we? The Court: Well, I don't see how I can give less than I did to the other side earlier in the proceedings; but I think that is enough, Mr. Lindabury, $3,000. I will advise a counsel fee of $3,000, and the costs of the issue. If you waive the costs of the issue on the jurisdiction, if you omit it entirely, the whole thing will go against both defendants; but, if you put those costs in, they can only go against the female defendant. However, you can frame your decree to suit yourself on that hereafter. Mr. Lindabury: I ask that the costs of supplying copies of the testimony to both parties in the cause be included in the taxed costs. The Court: The rule, as I recollect about that, is this: You see, the stenographer looks out for his pay from the parties who employ him, except as to one copy for the court, and you are entitled to recover one copy, supplied to your side, costs of one copy, and if you pay the whole of the court's copy, why, then you are entitled to recover for two copies, and the bill may be made out to you, Mr. Lindabury, just made out to Lindabury, Depue & Faulks, cost of one copy for counsel and cost of another copy for the court. Then all I do is to write across it "Tax it in." Mr. Lindabury: We have gotten three copies, and one has been furnished to the other side. The Court: They must pay that. I have nothing to do with that. The stenographer looks to them for that, and looks to you for what he has furnished to you; but the court is entitled to one copy, and the rule is that each party must pay one-half of the copy furnished to the court; but, if that one-half each in point of fact is not paid, and the successful party chooses to pay the whole of the court's copy, he may include that in his costs. You are not obliged to pay but one-half of that, and the stenographer may call on the counsel for the defendant to pay the other half; but I suppose they would prefer that it be taxed in the petitioner's costs; but you are not obliged to do that. If you choose to do that, Mr. Lindabury, you can have both copies taxed in the costs of the complainant; but you are not obliged to do it. You are obliged to pay one-half, and you are entitled to have that one-half put in the bill of costs. If you think you cannot recover it, you don't want to take that plan. Perhaps you better take the half and let the counsel for the defendant pay their half. June 17, 1907.) Appeal from Court of Chancery. Bill by James B. Duke against Lilian N. Duke. Decree for complainant (73 Atl. 837), and defendant appeals. Affirmed. Chauncey G. Parker and Samuel Kalisch, for appellant. Alvah A. Clark and Richard V. Lindabury, for respondent. PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion of Vice Chancellor Pitney (73 Atl. 837), delivered in the court below. (72 N. J. E. 942) DUKE v. DUKE (HUNTOON, Intervener). (Court of Errors and Appeals of New Jersey. June 17, 1907.) Appeal from Court of Chancery. Bill by James B. Duke against Lilian N. Duke and Frank T. Huntoon, intervener. Decree for complainant (73 Atl. 837), and intervener appeals. Affirmed. Alan H. Strong, for appellant. Alvah A. Clark and Richard V. Lindabury, for respond ent. PER CURIAM. The decree appealed from will be affirmed, for the reasons set out in the opinion of Vice Chancellor Pitney (73 Atl. 837), delivered in the court below. (78 N. J. L. 285) STREET RAILROADS (§ 114*)—INJURIES TO PER- Under the circumstances of this case, where it appeared by a preponderance of testimony that plaintiff had been seen intoxicated shortly before the accident, and the negligence attrib uted to the defendant rested substantially upon the plaintiff's uncorroborated story, which appears inconsistent with the situation in which he was found after the accident, and which, even if true, discloses negligence on his part, a verdict for the plaintiff is set aside. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 248; Dec. Dig. § 114.*] (Syllabus by the Court.) sey. Action by Christian A. Anderson àgainst George S. Silzer, for plaintiff. Leonard J MINTURN, J. According to the testimony of the plaintiff, he was walking along the highway between Perth Amboy and Metuchen, about 7 o'clock on the evening of September 7, 1907, when he was overtaken by an automobile, and stepped aside to let it pass. In making this movement he stepped close to the trolley track of the defendant company, which was laid upon the easterly side of the highway. Within a minute or two after the passage of the automobile, the plaintiff says he was struck by a trolley car, upon the right shoulder, was tripped up by the car fender, and thrown upon the track; the car passing over both feet, which necessitated their amputation. The men upon a work car, following the car in question, a few minutes later discovered the plaintiff, picked him up, and he was subsequently taken to the hospital. The verdict in the case was for the plaintiff for $6,500, and the rule to show cause raises the question of the propriety of this verdict under the testimony and the law. The case, with the exception of the plaintiff's testimony, is almost barren of any direct testimony upon the happening of the accident, and the verdict therefore is largely the product of presumptions, claimed to exist by reason of the existence of proved facts. The plaintiff's explanation of his inability to avoid the car which struck him was that the automobile left a cloud of dust behind it, and that the car, coming from behind him two or three minutes thereafter, gave no warning by bell or by light of its coming. His explanation of his physical and mental condition at that time, as testified to by himself and others, throws light upon the question of the plaintiff's contributory negligence, and serves to elucidate the question of the proximate cause of the accident. He knew the tracks were there, and says that, while the automobile was passing, he moved up closer to the tracks. The road was a wide macadamized road, without sidewalks, but with ample room upon the roadway proper to enable a wayfarer to avoid a collision. The plaintiff, as a resident in the neighborhood, presumably was familiar with the road and the tracks, and, at the time of the accident, was walking from a public house to his home, a distance of a mile. He says he left Perth Amboy at about a quarter of 5 o'clock upon a trolley car, and was taken sick thereon; that he alighted and went to the house of a friend; that he again took a trolley car, but, feeling sick again, he alighted at Underhill's Hotel, where he sat upon the stoop until he decided to walk home. Upon the nature of the sickness which induced plaintiff, as he alleges, to leave the cars on two occasions, other witnesses place a different construction. Thus, Martin saw him at noon staggering, from which he concluded that plaintiff was intoxicated. At nearly 2 o'clock Dolan saw him board a car, and he says plaintiff "was under the influence of liquor. Appeared to be cursing in the car when I went up to him. He was noisy all the way down until he got off." This witness saw the plaintiff again at about an hour before the accident, and he appeared to him then "to be very drunk." Pierson, the postmaster at Metuchen, loaned plaintiff at his request that day 25 cents, after which plaintiff immediately went to Meyer's saloon across the street, and at that time Pierson says the plaintiff "had been drinking" and was saying foolish things, "like anybody will say when they have been drinking." Miss Lamporten, who saw him on the car coming from South Amboy, and who sat on the seat with him, testified that "he had been drinking," and she says, "He had money in his hand and offered it to me, and he said something, I don't know what." Without further recital of testimony of this character, it will suffice to say that to us the conclusion seems unavoidable that at the time of this accident the plaintiff was in an intoxicated condition, and that his version of the circumstances under which he received the injury must appear entirely untrustworthy. While his intoxication would not ipso facto invalidate his testimony, and it should not be ignored if at all substantiated, it must be, nevertheless, judicially noticed that intoxication is productive of the existence of a mental condition which renders testimony unreliable and impairs credibility. Rice on Ev. 28; Wharton on Ev. 401. He himself admits that he had a drink of whisky early that morning, and divided a kettle of beer with a painter at lunchtime, and that about 2 o'clock he went to a saloon where he remained an hour, and where he imbibed more beer, and "a couple of five-cent drinks," and still later, at Meyer's saloon, he had "a couple of drinks upon a sick stomach," which he says he had been "troubled with for a couple of days." The only testimony adduced in behalf of the plaintiff to explain the happening of the accident was that of one Wagner, who was a passenger on the car, and who testified that he felt four bumps at the point where the plaintiff was injured, and, looking back, saw an object on the ground; but he also testified that the car was lighted, that the work car which followed carried a headlight, and that the track from that point for quite a distance was straight. The plaintiff was found lying at the right-hand side of the right track, at a right angle to the track, with his feet stretched over the right-hand rail, and, in passing, it may be remarked that no evidence was adduced to explain his position at that place, and we cannot reconcile it with his recital of the circumstances under which he was struck, for clearly, when struck, he was walking upon the other side of the track, and we can only conjecture as to how he reached the side where he was found. Without reviewing the testimony more in detail, it will suffice to say that it is not apparent how, upon any correct conception of tort liability, negligence can be attributed, under the plaintiff's version of the circumstances of this case, to the defendant. The mere happening of the accident will not af ford a basis for liability, and this has been so often judicially determined that citation of authorities to support the proposition is need 840 L Merritt Lane, for complainants. Mark A. Sullivan, for answering defendants. at 248; Smith v. This is a bill filed by the next friend 2. 20. Most assured- of four infants to secure the proceeds of a estimony affording a life insurance policy. The defendants are the e inference-testimony | life insurance company and those who claim Ay in its statement ele- adversely to the complainants. The life iny of its probability-must surance company defaulted, and a decree pro warrant liability for alleged confesso has been taken against it. To us it seems manifest that, of the plaintiff be accepted, his failing to see or hear the car, de circumstances, in time to avoid the .. or. if the conditions made that ime. then his remaining in such close xdady to the track, after the automobile had passed, when the same conditions must have made it impossible for a person operating a car to see him, was the proximate cause of his injury; but, upon the entire ease, and in view of the great preponderance of testimony as to the facts leading up to the accident, we are unable to discover in the testimony any ac. of tort-feasance on defendant's part upon which liability can be predicated. Hummer v. Lehigh Valley R. R. Co., 75 N. J. Law, 703, 67 Atl. 1061. The rule to show cause should therefore be made absolute. (76 N. J. E. 104) SULLIVAN et al. v. MARONEY et al. (Court of Chancery of New Jersey. June 11, 1909.) 1. INSURANCE (§ 203*)-LIFE INSURANCE-ASSIGNMENT OF POLICY BY INSURED. An assignment by insured of a life policy payable to her children, if they survived her, which they did, otherwise to her estate, was ineffectual against her children, who alone could assign their interest. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 471; Dec. Dig. § 203.*] 2. INSURANCE (§ 203*) - LIFE INSURANCE [Ed. Note. For other cases, see Insurance, Dec. Dig. § 203.*] 3. INSURANCE (§ 587*) - LIFE INSURANCE – CHANGE OF BENEFICIARIES. The rights of parties between themselves as to the proceeds of a life policy, depending on whether there was a change of beneficiaries, are not affected by the insurance company not contesting the question of change of beneficiary, but admitting its liability to some one. [Ed. Note. For other cases, see Insurance, Dec. Dig. § 587.*] Suit by Dennis J. Sullivan, as next friend, against John F. Maroney and others. Heard on bill, answers, replications, and proofs in Decree for complainants. GARRISON, V. C. John F. Maroney was a life insurance agent doing business in Jersey City. Edward and Margaret Cahill, husband and wife, were people of the working class living in Jersey City. Marie Schaefer, subsequently married to McCabe, was a sister of Maroney's wife. In January of 1906 Maroney induced the Cahills to take out $12,000 worth of life insurance, $6,000 on the life of each. These policies were as follows: On the life of Margaret, $3,000 in the Equitable Insurance Company, payable to Edward; $2,000 in the State Life Insurance Company of Indianapolis, payable to the four children of the parties (the complainants); $1.000 in the State Life aforesaid, payable to Edward; on Edward's life, $3,000 in the Equitable Insurance Company, payable to Margaret; $2,000 in the State Life Insurance Company of Indianapolis, payable to Margaret; $1,000 in the State Life aforesaid, payable to Margaret. The premiums on all these policies taken together for the first year amounted to $315. Maroney, who attended to all of the business, and acted as agent in the entire transaction, testifies that he secured the money to pay the premiums from Marie Schaefer (now McCabe) by an agreement between her and the Cahills, which was at she was to pay these premiums and was to have assigned to her all of the policies excepting the policy for $1,000 on the life of Edward, payable to Margaret, issued by the State Life Insurance Company. He also says that she was to pay $35 more than all of the premiums; that is and that this extra $35 was to go to Mrs. Cato say, she was to pay $350, instead of $315, hill. And, further, he says that it was agreed that she should pay all of the debts of Margaret Cahill which were owed by the latter at the time of her death, and, further still, he said that, as part of the agreement, $200 out of any insurance collected on the life of Margaret was to be paid to Edward. He asserts that he obtained the money to pay these premiums from Miss Schaefer shortly after the time that the policies were taken out in 1906, and that it was at that time, that the agreement was made. In January of 1907 Mrs. Cahill was seriously ill of the disease of which she died on the 2d of March, 1907, and while in bed she signed assignments of the policy in question, and at or about the same time Edward Cahill signed assignments to Marie Schaefer of the $3,000 policy in the Equitable Life and the $1,000 policy in the State Life, on the life of Margaret, payable by virtue of the alleged agreement of Januto him. No assignments were ever procured ary, 1906, to Miss Schaefer. from Margaret on the $3,000 policy on Edward's life payable to her, issued by the Equitable, or of the $2,000 policy in the State Life on the life of Edward, payable to her, nor of the $1,000 policy in the State Life on the life of Edward, payable to Margaret. The last-named policy was not to be assigned, but was agreed to be kept up for the benefit of Margaret, according to Maroney's testimony. The assignment of the policy in suit is in the following terms: "Form of Assignment Otherwise Than as Collateral Security. To be attached to and retained with the policy for use as evidence when required. For one dollar, to me in hand paid, and for other valuable consideration (the receipt of which is hereby acknowledged) I hereby assign, transfer and set over all my right, title and interest in policy No. 149,191 on the life of (myself) Margaret Cahill issued by the State Life Insurance Company of Indianapolis, Ind., and all money which may be payable under same to Marie Schaefer of Hoboken, N. J., whose P. O. address is 612 Washington street, and for the consideration above expressed 1 do also for my executors and administrators guarantee the validity and sufficiency of the foregoing assignment to the above-mentioned assignee, her executors, administrators and assigns; and the title to the said policy will forever warrant and defend. In witness whereof, I have hereunto set my hand and seal, this 19th day of Jan uary, 1907. Margaret Cahill. Edward Cahill." The policy provisions which are material are in the following language: "The State Life Insurance Company of In Margaret Call, of Jersey City, state of New Jersey (hereinafter called the insured) and agrees to pay the sum of two thousand dollars at the home office of the company at Indianapolis, Ind., to Dennis, Edward, Katie, and William Cahill, her children, share and share alike (or to such other beneficiary or beneficiaries as may be designated by the insured as hereinafter provided), if living, otherwise to the insured's executors, administrators or assigns, upon receipt and approval of proofs of the death of the insured, this policy being then in force, less any indebtedness of the insured or beneficiary to the company." This controversy concerns the $2,000 policy in the State Life Insurance Company of Indianapolis, Ind., issued on the 16th of January, 1906, on the life of Margaret, payable to the four children. Although Maroney and Schaefer each testify that the agreement was made and the premiums paid over by her to Maroney, and by Maroney to the company in January or February of 1906, it is very difficult for me to believe this. I incline to the opinion that no payment was made to the company for the first year-probably Maroney's commissions were sufficient to at least satisfy the first year's premiums-and the fact, I believe, is that the first payment was actually made at the beginning of the second year, which was the time when the assignment was obtained. Undoubtedly these policies were taken out by Maroney in a spirit of speculation. There is not the slightest pre-dianapolis, Ind., hereby insures the life of tense that the Cahills were ever in the position to take out any such amount of insurance, or to pay for any insurance at all out of their meagre means. At the time that the assignments were obtained from Margaret Cahill and from Edward Cahill, Margaret was a very sick woman, and was dying, and shortly afterwards died. It will be observed that assignments were only obtained for those policies which were upon her life. No assignments were obtained upon the policies upon the life of Edward. Part of the agreement, Maroney says, was that the debts due by Margaret Cahill at her death should be paid by Miss Schaefer, as a portion of the consideration; and he also says that it was agreed that $200 out of the insurance collected upon Margaret's death should go to Ed. ward, her husband. It is inconceivable to me that any such agreements were made in Janaary of 1906, when, so far as it appears, Margaret was in good health, and there was no reason to suppose that she would either die soon, or would die before her husband. However this may be, the taking out of the policies was a pure speculation, as was the participation therein of Miss Schaefer. As has been before stated, Margaret Cahill died on the 2d day of March, 1907, and the policy of $3,000 on her life in the Equitable has been collected by Miss Schaefer, as has the $1,000 policy in the State Life. It will be recalled that each of these policies on the life of Margaret were payable to Edward, and were by him assigned, in January of 1907, "Assignment. This policy may be assignbut the company will not assume any reed upon written approval of the president sponsibility for the validity of any assigne ment." "Change of Beneficiary. The insured may, at any time during the continuance of this policy, provided the policy is not then assigned, and subject to the rules of this company regarding assignments and beneficiaries, change the beneficiary or beneficiaries by written notice to the company, at its head office; such change to take effect on the endorsement of the same on the policy by the company." The bill sets out the issuance of the policy, the death of Margaret Cahill, the fact that the policy is in the possession of John Milton, who claims to hold the same on behalf of Marie Schaefer, now McCabe, and John F. Maroney, and that there has been no valid |