Thorp agt. Thorp.

fendant convicted of adultery shall marry again until the death of the complainant." By another section it is provided that any violation of this provision "shall be absolutely void."

It must be admitted that the validity of a marriage like the present has been heretofore an open question. We are not informed that the court of last resort in this state has determined any of the questions presented in this case. The supreme court of this district has decided them against the validity of the marriage by a majority of the court upon able opinions delivered by two of the learned judges on both sides of the question (reported in 2 Hun, 238), and we believe the supreme court of the second district have lately adopted the views of the court of this district.

Among the objections urged are that the statutes are fully satisfied by a construction which limits their prohibition to a second marriage contracted within this state. If this be conceded, it necessarily follows that the intention of the statutes was to permit either party to the contract, divorced for either his or her adultery, to go outside of its jurisdiction and marry again while the former husband or wife were living within that jurisdiction. It seems plain to us that this view of the case wholly overlooks the object and intention of the legisla-. ture. The statute not only forbids the marriage by prohibitory words, declaring it to be wholly void, but also attaches to the violation of the contract of marriage a punishment by depriving the guilty party of the power of entering into the marriage state during the lifetime of the injured party.

The question is one of policy of the law in its administration. It is the duty of those who administer the laws to see that they shall not be disregarded or violated by any of its citizens while enjoying its protection and privileges. The plaintiff here, by a decree of the court exercising jurisdiction, being forbidden to enter into the contract of marriage during the life of the partner he was bound to cherish and protect, goes into a foreign jurisdiction, sets at defiance the mandate of the court of his domicil by a second marriage, and now VOL. LX

38

Thorp agt. Thorp.

appeals to be relieved from the consequences of a contract illegal and void by the laws of his own state.

The case here is not one of domicile in Pennsylvania, for it is stated that the parties were domiciled here and went to Pennsylvania in fraud of our law. If the laws of Pennsylvania allow of such a marriage, and although it be true that that marriage is to be judged by the lex loci contractus, it is but reasonable that every state must so far respect its own laws and their operation upon its own citizens as not to allow them to be evaded by acts in another state for the purpose of defeating them.

We are of the opinion that in determining the matter before us a preliminary consideration is presented, that is, the capability of the party to contract the second marriage; and the question is, whether that capability is to be determined by the law of Pennsylvania or the law of New York.

The plaintiff here appeals to the tribunal of the state to which he owes allegiance and presents the question for its decision, whether he has the capacity to contract a marriage out of the state, and which by a decree of one of its tribunals he was absolutely forbidden to contract.

The answer to this question is settled by a direct adjudication in Conway agt. Beasely (3 Hagg., 639), which is precisely our case, in which persons domiciled in England were divorced in Scotland, and then one of them married again in Scotland and upon coming again into England that second marriage was declared null, though it was admitted to be good by the law of Scotland.

The plaintiff has chosen the tribunal exercising jurisdiction within the state of his residence to decide a question involving the validity of a contract entered into by him outside of that jurisdiction which he was forbidden to make by a judgment or decree of one of its own tribunals.

The order and judgment appealed from should be affirmed, with costs.

FREEDMAN, J., concurs.

Conley agt. Petrie et al.

CITY COURT OF BROOKLYN.

JOHN D. CONLEY agt. JOHN PETRIE et al.

Referee — When order of reference made upon consent will be vacated and a new referee substituted.

Where two causes against the same defendants were referred by consent and the referee had heard and determined the first in favor of the plaintiff, a number of questions involved in the second cause being also involved in the first case; on motion by defendants:

Held, that the order of reference should be vacated and a new referee substituted.

Special Term, July, 1880.

THIS was a motion to vacate an order of reference made upon consent and to substitute a new referee, upon the grounds that the referee had tried a case wherein the present plaintiff's brother and agent was plaintiff, and these defendants were defendants, and that a number of questions involved herein were involved in the first case, and that inasmuch as the referee had once passed upon the questions of fact, he was therefore disqualified.

The same witnesses were required in both cases.

Chas. G. Cronin, for the motion.

I. This is not an usual motion. The position of the defendants is a familiar one. No party should be required to enter upon the trial of an issue feeling that he has to overcome the preconceived opinion of the tribunal before whom he appears (Schermerhorn agt. Van Allen, 13 How., 82).

II. A referee stands in the same position as a jury and is subject to the same objection on the score of prepossession as would be urged against a juror on the second trial of the same case (Billings agt. Van Derbeck, 15 How., 297).

Conley agt. Petrie et al.

III. The defeated parties enter upon the second trial of a cause before the same referee with his views and prejudices all against them. He has seen and heard the parties and their witnesses and found his estimate of their credibility and of the force and effect of their evidence (Sharp agt. The Mayor, &c., 19 How., 198). We should not be compelled to overcome the impressions made upon the mind of the referee by what has already taken place in the other cause.

Harrington Putnam, opposed.

NEILSON, Ch. J.-This cause and another against the defendants were referred to C. P., Esq., by consent. The other cause has been tried by the referee and decided in favor of the plaintiff therein. The defendants now move to have another referee appointed in the place and stead of Mr. P., and it appears that while the actions are not for the same claims, there is such intimate relations as to justify the suggestion that of necessity the referee would go into the trial of this action with impressions, if not convictions, derived from the other hearing, touching some points yet to be litigated.

The application is not novel nor does it in any degree proceed upon the notion that the referee would not seek to do justice between the parties. It would be hard, under the circumstances, to deny the application and I feel constrained to grant it.

An order vacating the existing order of reference will be entered.

Murphy agt. Travers.

SUPREME COURT.

MARGARET MURPHY agt. WILLIAM R. TRAVERS and EDWARD MURPHY, Jr., as executors, &c., of JOHN MORRISSEY, deceased.

Practice-Action for accounting - Security for costs — When required, undor section 3271 of Code of Civil Procedure, of plaintiff suing executors.

A plaintiff suing executors will, under section 3271 of the Code of Civil Procedure, be required to give security for costs where it is made to appear by affidavit that he is pecuniarily irresponsible and unable for that reason to pay costs, although the action is concededly brought in good faith.

Special Term, February, 1881.

John McCrone, for plaintiff.

Dorsheimer, Bacon & Deyo, for defendants.

THIS action was brought by the plaintiff, as legatee under the will of John Morrissey, deceased, she being the sister and one of the heirs-at-law of said deceased. The plaintiff sued for an accounting by the executors, claiming that the real. estate of deceased was chargeable with the payment of legacies, and that in consequence of the inadequate jurisdiction of the surrogate's court, her only remedy was by resort to a court of equity.

The defendants moved, on an affidavit alleging the want of pecuniary responsibility on the part of plaintiff, and her inability for that reason to pay costs, that she be required to give security for costs in the sum of $1,000. The plaintiff, in opposition to the motion, contended that as the action was brought in good faith, which was not disputed by defendants, and as the granting of the motion was in discretion, under