er filing his said bill he condoned any fault or misconduct of complainant; and that his conduct was a fraud upon the court, and made the decree null and void, and that the complainant had but recently discovered the fraud practiced upon her, and only recently had heard that a decree of divorce had been granted in said cause.

The answer of the defendant denies specifically the allegations of the said bill of review, that he had condoned the offense of the complainant, or had assured her that he had abandoned the suit for divorce. He further denies the allegation that the divorce proceedings were a fraud upon the court or the complainant, and that he was at the time of the filing of his bill for divorce, or at any other time, a resident of the state of New York.

After the hearing of witnesses, the Vice Chancellor advised a decree in favor of respondent upon the ground that the complainant had no domicile or residence in the state of New Jersey at the time of the filing of the bill which resulted in the decree attacked, or during the pendency of that suit, and that the adultery on the part of the wife upon which the decree therein was based had been thoroughly condoned by the husband, and that the allegation of condonation pending that suit and before the decree therein was sustained by the weight of the evidence, and that the complainant's delay in asserting her right had not been such as to bar her from relief.

In his opinion the learned Vice Chancellor sets out at some length what, to use his own language, is termed a statement of the undisputed facts of the case, and adds that it would seem that the husband, the appellant here, had no residence or domicile in New Jersey at the time he was carrying on his suit here for divorce. If this could be considered an undisputed fact, or even a fair deduction from the proven facts, in this case, it would decide this case, for it would have to be admitted that he committed thereby a fraud upon the court; but in my opinion the testimony does not by any means establish this as a fact. The testimony of the appellant before the master in this suit for divorce, on October 9, 1896, disclosed that he then resided in Trenton, N. J., and that he had lived in Trenton for 15 years then last past. This was corroborated by the testimony of the father of the appellant, a clergyman of the Baptist denomination, who testified that at the time he married his son to the respondent, on the 6th of November, 1889, his son was a resident of Trenton; that he had resided in Trenton ever since, and still resided there on the day he testified, October 10, 1896. It is true that in his examination before the Vice Chancellor the appellant said that after his wife left him and had gone to New York and resided there in a flat he went there and lived with her for four or five months, when he again went

back to Trenton. I find it difficult to perceive how this temporary residence in New York City can be held to affect his residence or domicile in Trenton in the absence of any evidence of intention on his part to abandon it. The fact that he did not intend to change his domicile is manifested by appellant's beginning his suit for divorce after he returned to Trenton, and this established his belief, not only as to his residence, but his domicile in this state. The learned Vice Chancellor, for the purpose of sustaining the view that the appellant had abandoned his residence in New Jersey by residing in New York City a few months, cited the case of German Saving & Loan Association v. Dormitzer, 192 U. S. 125, 24 Sup. Ct. 221, 48 L. Ed. 373, as "directly in point." An examination of that case discloses that it is far from being in point. In the opinion in that case Mr. Justice Holmes said that "it appeared from the testimony of the husband that before he made a contract for part of the land in question he had sold out his property and business in Kansas and had gone in search of what he called a new location, and that when he bought this land he desired to locate there." These facts, the court held, were sufficient for the courts of Kansas to find that he had changed his domicile.

It seems unnecessary to point out how absolutely the facts in the case under consideration are at variance with those in the case cited; the intent in that case of the husband to change his domicile being apparent from his own testimony, while here there is no evidence whatever to warrant the belief or to enable a court to find that the appellant intended to change his domicile.

To construe the temporary residence by appellant with his wife in New York to be a change of domicile seems to me unwarranted; for, as Mr. Justice Depue said in Harral v. Harral, 39 N. J. Eq. 225, 51 Am. Rep. 17, "To the factum of residence must be added the animus manendi, and that place is the domicile of a person in which he has voluntarily fixed his habitation, not for temporary or special purposes, but with a present intention of making it his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home." The doctrine laid down by the courts of the United States is that a domicile having been once acquired, continues until a new one is actually acquired animo et facto. 10 Am. & Eng. Ency. of Law, p. 15; Cadwalader v. Howell, 18 N. J. Law, 138; Clark ads. Likens, 26 N. J. Law, 209.

I am unable to agree with the conclusion reached below, that as alleged in the bill of review at the time of beginning his suit for divorce the appellant was a resident of the state of New York, and therefore am of opinion that there was no fraud practiced on the Court of Chancery by the appellant in swear

ing that he was a resident of the state of New Jersey.

The second ground upon which below was based the right of the respondent to relief is because, as stated in the opinion, after the adultery charged in the bill and after the commencement of the husband's suit, and the service upon the wife of process, and before decree, the husband returned to the wife and cohabited with her, and led her to believe that he had abandoned the suit.

Condonation, standing alone, would not have justified the granting leave to file a bill of review; for how can that be considered new matter, which could have been produced and used by the respondent at the time when the decree was made? Every allegation relating thereto, if true, was known to the respondent during the pendency of the divorce suit, and before the entering of the decree, and if intended to be interposed as a defense should have been pleaded and proved in that suit. It is too late if it is first made known in an application for a bill of review; for, as was well said by Lord Chancellor Talbot in Taylor v. Sharp, 3 P. Wms. 371, "unless this relief were confined to new matter it might be made use of as a method for a vexatious person to be oppressive to the other side and for the cause never to be at an end." Now, after the lapse of four years from the entering of the final decree of divorce, and years after the taking from her of the child pursuant to the terms of said decree, she came before the Court of Chancery charging that she was deceived by her husband as to the abandonment of the suit for divorce; that during the pendency of that suit he condoned her guilt; and, further, that she never knew of the granting of the final degree of divorce until after her time for taking an appeal had expired. No extended review of the testimony is, it seems to me, necessary in the matter of the alleged deception on the part of the appellant as to the abandonment of the divorce proceedings, for the extent to which the respondent goes in her testimony is that she supposed from appellant's conduct he had abandoned the proceedings, but there is no pretense whatever that the appellant ever told her that he had done so, and in fact she testifies distinctly that she never had any conversation with him relating to the suit for divorce pending the suit. The testimony of the appellant is that he never visited his wife during the pendency of the proceedings, and never saw her save when he visited the boy, who was then living with her. The charge that the respondent had been led to believe that the appellant had abandoned his suit for divorce is not sustained in fact. This being so, the charge of fraud falls, and no ground can exist for the consideration of the alleged condonation, which, as before stated, could not be held to be new matter warranting the giving leave to file a bill of review, but was a personal defense of the respond

ent, which she could set up as a defense or waive, as she saw fit.

This brings us to the consideration of the respondent's alleged denial of knowledge of the existence of the granting of the decree of divorce until shortly before the time she filed the petition for a bill of review. An examination of her petition discloses that upon that very vital part of the respondent's case the allegation in the petition is that "your petitioner first heard positively that a divorce had been granted to her husband, Howard Watkinson, for infidelity on the part of your petitioner, through William D. Tyndall, an attorney and counselor at law of New York and New Jersey, who examined your petitioner in supplementary proceedings during the year 1901." Again the averment in her bill of review is: "And your oratrix having but recently discovered the fraud practiced upon her, and having only recently learned that a decree of divorce had been granted in said cause so as aforesaid instituted by her said husband, she expressly charges said decree, so fraudulently obtained as herein before mentioned, ought to be set aside," etc.

The evident intent of the above allegation was to excuse the laches of the petitioner, the respondent here. An examination of her testimony on this point is interesting. When examined in this cause de bene esse on June 30, 1902, before Samuel C. Mount, one of the masters in chancery, she was asked and replied: "Q. Did you know that he had obtained the decree of divorce at that time [summer of 1897]? A. He said that he had. Q. When did he say that? A. Well, he told me that when I first saw him after he left home, November. The next time I saw him he said he had the divorce. When it was granted I don't know; he didn't say when he got it." Now, in the testimony before the Vice Chancellor, in referring to the summer of 1897, she was asked and said: "Q. (By the Court). I understand you to say he came to your father's house and stayed a week the next summer (1897). He asked you when was the last time he had sexual intercourse? A. The last time was in the summer of 1897, at home. Mr. Tyndall: That was after the decree. The Court: After the decree, if she was willing to accept him as a concubine would a stranger. A. I didn't know the divorce was granted. Q. (By the Court). He never told you the divorce was granted? A. He never told me, and I never knew it any way to be positive of it. Mr. Backes: Did I understand the witness to say she didn't know and he never told her? A. He never told me, no, that the divorce had been granted; nobody ever told me."

It is difficult to reconcile the very material variance between the testimony of the respondent given at two different times in the same cause. One thing, however, it does demonstrate, and that is the truth of the

Vice Chancellor's comment that the wife elearly is not to be implicitly believed.

No attempt was made to reconcile these statements of the respondent, and, in my opinion, the respondent has failed to sustain the allegation of the petition and bill that she had only learned of the granting of the divorce in the year 1900, and she has no standing to urge it as new matter, then only brought to her knowledge, to enable her to file a bill of review.

The respondent having failed to make out a case either on the question of residence or of condonation and fraud, we are brought to the consideration of the very serious and important question of whether her laches and delay in petitioning for the filing of a bill of review has barred her right to the relief prayed for. The record in this case shows that the petition for leave to file a bill of review was not filed until nearly four years after the entering of the final decree in the suit for divorce, and the question to be determined is whether the laches and delay of the respondent in asserting her rights is a bar to this suit.

The rule in the English courts is that, when 20 years have elapsed from the time of pronouncing a decree which has been signed and enrolled, a bill of review cannot be brought, unless the plaintiff was under disability. Daniel, Ch. Pr. 1580; Mitf. Ch. 105; Lytton V. Lytton, 4 Bro. C. C. 441; Deloraine v. Brown, 3 Bro. C. C. 621.

And in the Supreme Court of the United States, in the case of Thomas v. Harvie's Heir, 10 Wheat. 147, 6 L. Ed. 287, Washington, J., in commenting upon the question of the limitation of the right to file a bill of review, said: "It must be admitted that bills of review are not strictly within any act of limitations prescribed by Congress, but it is unquestionable that courts of equity, acting upon the principle that laches and neglect ought to be discountenanced, and that in case of stale demands its aid ought not to be afforded, have always interposed some limitation to writs brought in those courts." And this case explicitly declares the rule, never since departed from, in that court, as follows: "There is no statute expressly limiting bills of review, but the courts of the United States are governed in this particular by the analogous limitation of the right of appeal, and therefore a bill of review cannot be filed after the lapse of five years from the final decree." Applying this rule to the practice in our state, after the lapse of three years leave would not be granted to file a bill of review.

There is, however, one exception to the general rule in England as noticed by Mitford, and that is the discretionary power of the court in the case of newly discovered evidence, and this exception Judge Washington recognizes in Thomas v. Harvie, supra, saying: "Whether a bill of review, founded upon matter discovered since the decree, is in like

manner barred by the lapse of five years after such decree, is a question which need not be decided in the present case, since we are all of opinion that it is in the discretion of the court to grant leave to file a bill of review for that cause." My examination of the authorities leads me to the conclusion that the law as above laid down in the Supreme Court of the United States has been almost uniformly followed in this country.

The time of appeal having expired when this application for leave to file the bill of review was made, the petitioner was barred unless her case could be brought strictly within the exception of newly discovered evidence, or of some special equity that would give the court the discretionary power to make the order.

The question of fraud being eliminated from the case, there is left only one matter which could in legal contemplation have been urged, either as a newly discovered fact or as a ground of special equity upon which to rest an application for a bill of review, viz., the ignorance of the petitioner of the existence of a decree of divorce until after the time for appeal had expired. But it has already been shown that this has no foundation in fact, for the petitioner in her own testimony admits and swears to her knowledge of the final decree in the divorce suit within a year after the entry of the same.

But in the court below the learned Vice Chancellor said that he was unable to see how any delay beyond the time limited for taking an appeal on the part of the respondent could on any known principle affect her right to a declaration by the court that the decree of divorce was invalid and void ab initio by reason of the lack of jurisdiction of the Court of Chancery to proceed in the cause. He then adds that where there is a lack of jurisdiction by reason of a want of residential domicile on the part of both parties, combined with extraterritorial service and the absence of any formal appearance by the defendant, it followed that the decree was absolutely void. It was for this reason that he held that the respondent's belief was not affected by her laches. But as we have already shown, there was a residential domicile on the part of the appellant when he filed his bill for divorce, and, although the service on the wife of process was extraterritorial, it conformed to the law of this state, and the decree, instead of being void, was valid and binding upon the parties.

There is, however, another consideration why the laches of the respondent should not be overlooked, and that is that on the strength of the decree in the Court of Chancery the appellant has married again, so that other rights have now intervened, and an entirely innocent party will suffer should the decree be revoked.

I am clearly of the opinion that the earlier decision of the Court of Chancery that the appellant had a legal domicile and residence

VROOM, J. (after stating the facts). This was the second trial of this case at the circuit. At the first trial the jury was directed to find a verdict for the plaintiff, and, on the removal of the case to this court by writ of error, it was held that this direction was manifestly wrong, for at the trial there was no question but that the collision injured the plaintiff, and was the result of negligence on the part of the defendant company, and that the question tried was whether the plaintiff was not also in the employment of the same company, so that the negligence by which he was injured was that of a fellow servant. The per curiam opinion then said that there were two views that could be taken of the evidence: One, that Lesher, who employed and paid the plaintiff, acted in so doing as the mere agent of the defendant company; the other, that Lesher had some contract with the defendant company respecting the repair of its tracks, and, having employed the plaintiff in respect to his business, had transferred plaintiff's services pro hac vice to the defendant company, with plaintiff's consent, and that there should have been a submission to the jury whether there had been such transference of services with plaintiff's consent. Norman v. Middlesex & Somerset Traction Co., 68 N. J. Law, 728, 54 Atl. 835. When the case came on for trial the second time the evidence was practically the same as at the first trial, with the exception that the plaintiff was able to secure the evidence of Lesher, whose testimony showed that he had the entire direction and superintended the repair work, mostly personally, and had as his assistant Hughes, who was also his timekeeper. He further testified that he paid for the stone to be used in the repair work, and sent the car to be loaded directly off the wagons which delivered it. He further stated that he gave to Eick, the motorman, the orders as to the running of the car, but admitted that Eick was not paid by him. At the close of the case a motion was made to direct a verdict for the defendant, and, disposing of the motion, the trial judge said that it must be conceded that Lesher & Son were independent contractors, and that the plaintiff Norman was the employé of that firm, and that Eick, the motorman, in all that he did for Lesher & Son, was a fellow servant of the employés of Lesher & Son. He, however, granted the motion on the ground that the risks incident to the operation of the car were risks of the business of Lesher & Son, and all such risks the plaintiff Norman must be held to have assumed as an incident of his employment; that, in the operation of the car under the system of notice, Lesher & Sons' servants and the de

fendant's servants were engaged in the same line of work-all in the work of a common nature, and all subject to the risks incident to the failure to observe the custom. The work of the employés of the defendant was the work of the defendant company. They were all operating cars over the line of the defendant company, in the defendant's work, about the defendant's business, and were in that employment, in operating the cars, all fellow servants in that particular respect. In that condition, among the risks assumed and incident to the business were the risks resulting from the negligence of the servants of the defendant.

The difficulty with this instruction to the jury is that it ignores entirely the two questions that were distinctly held by this court to be matters which should be submitted to the jury, and, as contended by the plaintiff in error, rendered immaterial the fact whether Lesher was an independent contractor, or merely a foreman or agent of the defendant company, and whether there had been a transference of plaintiff's services with his consent. To assume, as was done by the trial judge, in order to warrant the direction of a verdict for the defendant, that the plaintiff and the servants of the defendant were, under the evidence, all fellow servants of the company, and that all were operating cars over defendant's road and about defendant's business, was error; and this seems the more apparent, independently of taking so vital a question from the jury, from the fact that the trial judge had distinctly stated that there was proof from which the jury might find that Lesher & Son were independent contractors, and that the plaintiff was an employé of that firm. It does not seem to me to admit of any doubt but that, under the evidence, the jury could have found that in the doing of the work Lesher & Son were independent contractors, and also that the plaintiff was exclusively in the employ of Lesher & Son, and not in that of the defendant company. Whether the services of the plaintiff had been transferred by Lesher, pro hac vice, to the defendant, with the plaintiff's consent, was also, as pointed out in Norman v. Middlesex & Somerset Traction Co., supra, an important question. This transference can be established only by showing that the plaintiff assented expressly or impliedly to the transfer, and, as held in D., L. & W. R. Co. v. Hardy, 59 N. J. Law, 38, 34 Atl. 986, "it may be established by direct proof that he agreed to accept the new master and to submit himself to his control, or by indirect proof of circumstances justifying the inference of such assent."

The judgment below should be reversed, and a venire de novo awarded.