cuting offenders under the temperance laws, or whether they had contributed to any funds for such a purpose, were proper when asked with a view to call out facts upon which intelligently to base a peremptory challenge. Lavin v. People (1873) 69 Ill. 303, 1 Am. Crim. Rep. 578. The court was not called upon to determine whether an affirmative answer to the foregoing questions would have been ground of challenge for cause.

The court in State v. Mulroy (1922) 152 Minn. 423, 189 N. W. 441, admitted that "doubtless the court (trial court) should have permitted the jurors to answer" questions propounded by the attorney for the defendant in a prosecution for violation of the liquor laws, inquiring of the jurors if they were or ever had been members of a society or company or association which had for one of its objects the prohibition of the liquor traffic, in order to enable the defendant intelligently to exercise his peremptory challenges, but, as it appeared that the evidence of guilt in this case was so conclusive, the failure of the trial court to allow these questions could not have prejudiced the defendant. Especial attention is called to the strong dissenting opinion of Holt, J., concurred in by Dibell, J. c. Societies for the detection and prosecution of thefts of live stock, etc. In the following cases it has been held that membership in associations for the prosecution of live-stock thefts is not a ground of disqualification of a juror in a cause where the defendant is being prosecuted for such a crime, in the absence of any showing that the juror objected to is actively interested in the prosecution of the case, or has contributed funds towards the prosecution of the defendant: Boyle v. People (1878) 4 Colo. 176, 34 Am. Rep. 76; Musick v. People (1866) 40 Ill. 268; State v. Wilson (1859) 8 Iowa, 407; State v. Van Hoozer (1921) 192 Iowa, 818, 185 N. W. 588; State v. Flack (1892) 48 Kan. 146, 29 Pac. 571; Wilburn v. Territory (1900) 10 N. M. 402, 62 Pac. 968, 14 Am. Crim. Rep. 500; Starke v. 31 A.L.R.-27.

State (1908) 17 Wyo. 55, 96 Pac. 148, 17 Ann. Cas. 222.

In Boyle v. People (Colo.) supra, where, in a prosecution for larceny of cattle, certain jurors were objected to on the ground that they were members of an association known as the Cattle Association, which had for one of its purposes the prosecution of cattle stealers, the court held that the jurors objected to were not disqualified although they were members of such an association, where it appeared that they had not done anything toward the prosecution of the defendants, nor had contributed anything toward the expense of the prosecution, nor were bound in any way to such a contribution, nor were affected by any pecuniary interest in the case, present or future. The court remarked, however, that it would be well "if, in the exercise of a sound discretion, jurors belonging to such associations should be excused in all cases where an intelligent and impartial jury can be impaneled in the community without the pale of such organizations. But the bare fact that one is a member of an organization which is under no obligation or duty to unduly prosecute criminals or persons charged with a particular crime is not per se a legal disqualification affecting his competency to sit as a juror in the trial of such a case."

In Musick v. People (1866) 40 Ill. 268, the court held, in a prosecution for larceny of a horse, that certain jurors in the cause were not disqualified because of their affiliation. with an association organized for the purpose of detecting and prosecuting horse thieves. After stating the universally recognized principle that all persons have a right to be tried by a fair and impartial jury, the court says: "But does the fact that persons belong to an association whose object is to detect crime raise a presumption that they are prejudiced against a person charged with a criminal offense; or that they would not be able to give him a fair and impartial trial? We think that it raises no such presumption. In one sense, all persons living under a civilized

form of government are members of such an association. The very object of all government is to protect individuals in their rights, and to punish persons who invade such rights. And every citizen who pays a tax contributes money to aid in convicting persons guilty of crime; and all persons are liable to be compelled to devote time to effect the same end. It is for this that jurors and witnesses are required to attend courts of justice."

In a prosecution for larceny of a horse, the court held in State v. Wilson (1859) 8 Iowa, 407, that a question propounded to a juror as to whether he was a member of any association for the prosecution of persons arrested for horse stealing, even if answered in the affirmative, would not have disqualified the juror. In answering the contention of defendant, that the question was proper as a basis for determining whether he should exercise a peremptory challenge, the court was of the opinion that the ruling of the trial court that the juror might be asked "whether he was a member of any organization existing in the country, or elsewhere, engaged in prosecuting the present cause," sufficiently preserved the defendant's rights in this particular, and was not an improper exercise of the discretion of the trial court.

A member of an organization known as the "Antihorse-thief Association," formed for the purpose of bringing to justice persons guilty of stealing horses and automobiles, said member having contributed towards rewards given by the association to persons securing the conviction of such offenders, was held in State v. Van Hoozer (1921) 192 Iowa, 818, 185 N. W. 588, not disqualified as a juror in a case against a party for larceny of an automobile, where it appeared that the association was not in any way concerned with the prosecution of defendant, and the juror testified that such membership would in no way bias his judgment in the instant case, and that he could give the defendant a fair and impartial trial.

Where upon the voir dire examina

tion of certain jurors in a prosecution against the defendant for horse stealing, these jurors were shown to be members of an association for the prevention and prosecution of larceny, the court, in State v. Flack (1892) 48 Kan. 146, 29 Pac. 571, held that membership in such an organization was not a ground of challenge for cause, as it appeared that the jurors concerned had never taken any oath in connection with such association, and, judging from their answers upon the voir dire, could try the defendant or any person charged with larceny as impartially as though he were being prosecuted for some other offense.

In a prosecution for the larceny of cattle, the court held in Wilburn v. Territory (1900) 10 N. M. 402, 62 Pac. 968, 14 Am. Crim. Rep. 500, that where a challenge for cause of a juror upon the ground of bias or prejudice because of his membership in, and subscription to the funds of, an association organized for the purpose of prosecuting parties suspected of the larceny of cattle, is overruled by the trial court, the action of the trial court as trier of the challenge will be sustained in the absence of evidence that the court abused its discretion.

Membership in an association one of the purposes of which was the detection and prosecution of parties for the larceny of sheep or live stock, the members of which paid dues and were liable to assessments, was held in Starke v. State (1908) 17 Wyo. 55, 96 Pac. 148, 17 Ann. Cas. 222, not to be a ground of disqualification of a juror in a prosecution against accused for the larceny of sheep, in the absence of a showing that the association to which the juror belonged was in some manner connected with or interested in the prosecution of the instant case.

III. Membership in fraternal order.

Where a defendant was on trial for murder, he should have been allowed to ask each juror, when called and sworn on the voir dire, whether he was a member of either of the secret societies known as the Odd Fellows,

the Knights of Pythias, or the Sons of Hermann, upon a statement of the counsel for the defendant that the decedent had probably been a member of one or more of these orders, the purpose of the inquiries being to enable the defendant judiciously to exercise his peremptory challenges. State v. Tighe (1903) 27 Mont. 327, 71 Pac. 3. The court says: "A defendant should be permitted great latitude in examining jurors, so as to be in a position intelligently to exercise his challenges, and whenever there is a fair doubt as to the propriety of a question it is better to allow it."

In an action for damages against a surgeon for malpractice, the court held in Van Skike v. Potter (1897) 53 Neb. 28, 73 N. W. 295, that it was not error to refuse to permit examination of jurors on their voir dire as to their membership in any secret society, as in this case no secret society was directly or indirectly involved, and no useful or just purpose could have been served by permitting the jurors to answer the question. The court admitted that a litigant has the right to examine jurors for the purpose of determining whether grounds exist for a challenge for cause, but the pertinency of the questions advanced are to be determined, according to the court, by the sound. discretion of the trial court from the nature of the case on trial. And the court expressly states that it does not wish to be understood as holding that in no case would it be proper to ask a juror whether he belonged to a secret society; all that the court decides on this point is that the question was impertinent in the instant

case.

It was not a ground of challenge to a juror, that he was a Master Mason, in a suit wherein one of the parties belonged to the fraternity of Freemasons. Purple v. Horton (1834) 13 Wend. (N. Y.) 9, 27 Am. Dec. 167. A juror is not incompetent because he and one of the parties to the litigation are members of the same religious denomination or fraternal order, if no interest, pecuniary or

In People v. Reyes (1855) 5 Cal. 347, where the defendants were Mexicans, indicted for assault with intent to commit murder, the court held that it was error for the trial judge to refuse to allow defendants' counsel to ask a prospective juror if he was a member of a secret political society known as the Know Nothings, and under obligations as a member of such society which might create a prejudice against foreigners. The court remarks: "To ascertain whether a bias exists in the mind of the juror, resort must be had to his his declarations to others, or to sworn statements when interrogated. As the juror knows best the condition of his own mind, no satisfactory conclusion can be arrived at without resort to himself. Applying this test then, how is it possible to ascertain whether he is prejudiced or not, unless questions similar to the foregoing are propounded to him? He is charged with belonging to a secret association, and with being, as a member of such association, under obligations which might create a prejudice against foreigners who may reside in the country. To ascertain that fact, and in order to purge the juror of the charge of bias, he is asked the question, 'Have you at any time taken an oath, or other obligation, of such a character that it has caused a prejudice in your mind against

Statement by Vinje, Ch. J.:

Plaintiff filed a claim against the estate of Valentine Fox, deceased, claiming that she believed herself lawfully wedded to him, and while occupying the relation of wife to him she rendered services for him and gave him a house in which to live, and, among other things, asked for compensation for the value of her personal services and for the rental value of her house. The issues were submitted to a jury and it found: (1) That Valentine Fox, for the purpose of inducing the plaintiff to marry him, represented to her that he was free to marry her; (2) that plaintiff, in entering into the marriage with him relied upon such representation as true; (3) that she had a right to rely upon such representations; (4) that she did not know before his death that he had no legal right to marry her; (5) that during the entire period from November 21, 1914, until January 30, 1921, she continued under the belief that he had the legal right to marry her; (6) that the value per week to her of the services lost by her by reason of entering into the marriage contract with him was $3; and (7) that the reasonable value per month of the house which she furnished him was $6. The court entered judgment for plaintiff for the services and rental for six years, in the sum of $1,445.52, and the defendant appealed.

Messrs. Stephens & Morrison and F. W. Hall, for appellant:

Claimant cannot be heard to say that she was induced to enter into the contract by the fraud of Valentine Fox.

Lyannes v. Lyannes, 171 Wis. 381, 177 N. W. 683.

No claim could arise without express contract.

Taylor v. Thieman, 132 Wis. 38, 122 Am. St. Rep. 943, 111 N. W. 229; Kessler's Estate, 87 Wis. 660, 41 Am. St. Rep. 74, 59 N. W. 129; Ellis v. Cary, 74 Wis. 176, 4 L.R.A. 55, 17 Am. St. Rep. 125, 42 N. W. 252; Pellage v. Pellage, 32 Wis. 136; Wells v. Perkins, 43 Wis. 160.

The plaintiff is conclusively presumed to have known at the time she

entered into the contract of November 21, 1914, that Valentine Fox was not divorced.

Perkins v. Best, 94 Wis. 173, 68 N. W. 762; Rindskopf v. Myers, 87 Wis. 84, 57 N. W. 967; Andrus v. St. Louis Smelting & Ref. Co. 130 U. S. 643, 32 L. ed. 1054, 9 Sup. Ct. Rep. 645; Clodfelter v. Hulett, 72 Ind. 137; Jaggar v. Winslow, 30 Minn. 263, 15 N. W. 242. Messrs. Lueck, Clark, & Lueck for respondent.

Vinje, Ch. J., delivered the opinion of the court:

The verdict is vigorously assailed by appellant because it finds that plaintiff entered into the marriage with Fox in good faith. The principal grounds for the argument are that the parties entered into a civil contract of marriage before a notary public and witnesses, and were not married in the usual manner; that she had had exhibited to her the decree of divorce which Mr. Fox had secured from his first wife, which decree was one from bed and board, and not an absolute one; and that she had been told by the former wife and daughter that she was living in adultery with Mr. Fox.

Husband and

entering into

Since the law recognized as valid a civil contract of marriage at the time this was entered into (Becker v. Becker, 153 Wis. 226, L.R.A. 1915E, 56, 140 N. W. 1082), it cannot be held error for the jury to find that there was nothing suspicious or wife-presumpwrong in entering tion against one into a lawful con- marriage before notary public. tract of marriage. The claim that, since plaintiff saw the judgment for divorce from bed and board, she must have known it was not an absolute divorce, as Mr. Fox represented it to be, is not persuasive. Were she a party to the instrument, or versed in law, the claim would rest upon more substantial grounds. But she was neither. It is true the instrument concerned her vitally, but she may well have believed that it was an absolute divorce. It recited that it was a divorce "from bed and board forever," and she may

notice of diand board

vorce from bed

effect.