88 N. J. L. West Jersey Trust Co. v. P. & R. R. Co. November 13th, 1911, while at work in New Jersey on a train engaged in interstate commerce. He left a widow and two young children. We think that all the grounds urged against a recovery of compensation have been decided adversely to respondent, except perhaps the last. 1. That as deceased was engaged in interstate commerce, the federal act is exclusive. It is decided otherwise in Rounsaville v. Central R. R. Co., 87 N. J. L. 371. 2. That deceased was willfully negligent. But willful negligence is not a defence under section 2 of the act. See Taylor v. Seabrook, 87 N. J. L. 407: 3. That the act is inapplicable on account of the rule of lex loci contractus. Aliter in American Radiator Co. v. Rogge's Administrator, 86 N. J. L. 436; affirmed, 87 Id. 314. 4. That the claim is barred by a release by decedent in his lifetime contained in his application for admission into the railroad relief association, and a further release by his widow on receipt of the death benefit from said association. The first seems to refer to damages only. The Compensation act, as has more than once been pointed out, created a right of recovery contractual in its nature, and irrespective of negligence or other common law liability on the part of the employer. American Radiator Co. v. Rogge, supra; Jacowicz v. D., L. & W. R. R. Co., 87 N. J. L. 273. But apart from this, the statute of 1911, which was on the statute book at the time of the second employment (see Sexton v. Newark District Telegraph Co., 81 N. J. L. 85, 96 et seq.; affirmed, 86 Id. 701) created an irrebuttable presumption in the absence of an express contract or notice as therein provided, of the assent of the parties to a new contract or quasi contract, whereby in case of injury or death there should be compensation according to the statutory scheme. American Radiator Co. v. Rogge, supra. This must be taken to have superseded pre-existing arrangements between the parties, and among them the release in advance of all claim for "damages" in view of the membership in the relief association. The subsequent release of the widow, which by its recitals is expressly founded upon the agreement contained in the membership application, and which includes the relief association as a party released, must be held as a matter of construction to be limited in its application to the rights and liabilities of the parties as they would have existed if the Compensation act had not been passed. This construction is fortified by considering that the act of 1911, by paragraph 12 (Pamph. L., p. 139) provides for awards based on the existence of children as well as the widow, and for distribution to them in case of intestacy, according to the intestate law of this state. The release is made by the widow qua widow, and of course cannot bind the personal representative of the deceased, who sued in right of the statute. These views result in a reversal of the judgment. The judge who tried the case having gone out of office, the matter must be retried, unless the parties agree to submit it on the evidence already taken. Long v. Common Pleas, 86 Atl. Rep. 529. The costs will abide the event of the suit. THE STATE v. JAMES P. REILLY, JR. Submitted July 1, 1915-Decided November 30, 1915. 1. The statute relating to the crime of bigamy, after defining the offence and fixing the penalty declares, in the same section, that nothing in that section should extend to any person in classes particularly described. Held, that in an indictment for bigamy. it was not necessary to aver that the defendant was not within either of the excepted classes. 2. To require that an indictment negative an exception contained in a criminal statute, the exception must be contained in the. prohibitory clause as a part of the description of the crime, and the fact that the exception appears in the same section which defines the crime, does not change the rule if the clause follow the prohibitory clause and is distinct and substantive. 88 N. J. L. State v. Reilly. On error to the Union County Quarter Sessions. Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and BERGEN." For the plaintiff in error, William R. Wilson. For the defendant in error, Alfred A. Stein, prosecutor of the pleas. The opinion of the court was delivered by BERGEN, J. The defendant was convicted of bigamy. His first wife lived with him one week; they never saw each other for six years prior to his second marriage, and the defendant testified that he was told by her mother that she was dead before his second marriage. The defendant, having brought the record here, has assigned errors thereon, and also filed specifications of causes under sections 136 and 137 of our Criminal Procedure act. The first point made is, that the indictment was defective and should have been quashed, a motion therefor having been made before the jury was sworn, and the same questions raised by a request to charge which was refused by the trial court and an exception thereto sealed. The defect alleged is, that the indictment does not aver that the defendant is not included in the class of persons which the statute exempts from its operation. The statute referred to is section 52 of the act entitled "An act for the punishment of crimes" (Revision of 1898). 2 Comp. Stat., p. 1743. This section declares "any person who having a husband or wife living, and marries another person, shall be guilty of bigamy, and punished by fine not exceeding one thousand dollars, or imprisonment at hard labor not exceeding ten years, or both; but nothing in this section contained shall extend to any person whose husband or wife shall be continually remaining within the United States of America for the space of five years together, or whose husband or wife shall absent himself or herself, the one from the other, for the space of five years to gether, in any parts within this state or the United States, the one of them not knowing the other to be living within that time, nor to any person who is or shall be at the time of said marriage divorced, by the judgment or decree of any authority or court having cognizance thereof; nor to any person where the former marriage has been or shall be by the judgment or decree of any such authority or court, declared to be void and of no effect."/ The claim of the defendant is, that an indictment for bigamy must aver that the defendant is not within the class of persons to whom it is declared the part of the section defining the crime and fixing the penalty shall not extend./ It is well settled in this state that if there is an exception in the "enacting clause" of a statute upon which an indictment is founded, there must be an averment that the defendant is not within the excepted class, for in such case the exception is an essential part of the description of the offence. But the fact that the proviso or exception is in the same section of the act, does not make it necessary to notice it in pleading, unless it is also incorporated in the enacting clause, "for statutes are not divided into sections upon the rolls of parliament." McGear et al. v. Woodruff, 33 N. J. L. 213, in which Mr. Justice Depue quoted with approval from Gould Pl., as follows: "In an action founded on a penal statute the subject of any exception in the enacting or prohibitory clause of the act must, in the declaration, be included by averment; but of any proviso or qualification in a separate substantive clause, the declaration need not take notice. In the first case, the exception is an essential part of the description of the offence or thing prohibited; in the latter, the proviso, &c., is only a distinct matter of defence." Any confusion which may exist in the cases dealing with this subject is, we think, due to the use of the expression, "enacting clause," when referring to the declaratory or prohibitory clause. Strictly speaking, the enacting part of a statute is that which declares its enactment and identifies it as an act of legislation, which is no part of the prohibitory or declaratory clause of the act. If the exception appear in the latter, it is an essential part of the description of the thing prohibited, and must be negatived. The exception relied on in this case is not contained in the prohibitory clause of the act, but in a separate substantive clause which the pleader need not notice. /In State v. Miller, 24 Conn. 522, the statute provided, in section 1, that no person should manufacture or sell intoxicating liquor "except as hereinafter provided," and then followed in succeeding sections certain exceptions. The written complaint there under review, which was in the nature of an indictment, did not negative the exceptions. In disposing of this matter, Judge Ellsworth, speaking for the Supreme Court of Errors of Connecticut, said: "Now, the claim is that, by the reference in the first section, the subsequent exceptions are incorporated into the first section, and become a part of it as effectually as if they were recited verbatim, and that they must therefore be negatived, according to the wellsettled rule of declaring that an exception, contained in the enacting clause of the statute, must be negatived by the prosecutor or the pleader. As to this general rule of law, we believe there is no doubt; but in the application of it, and especially in the language that has been used, quite loose and unguarded, as we think, there is great confusion and apparent inaccuracy even by those who understood the rule as we do. The rule, as everywhere laid down, is, that after words of general prohibition, whatever comes in by way of proviso or exception, need not be negatived by the pleader, but must be set up by the accused. In this view, it is immaterial whether the proviso, or exception, be contained in the enacting or subsequent sections, if it only follow a general prohibition. * * * It is of no importance in what section the proviso is placed. By 'clause,' in these cases, I understand, the words of prohibition; that sentence of the section, which at first describes and prohibits the general offence, though it is followed by exceptions, as in the statute in question." In State v. Price, 71 N. J. L. 249, 256, Mr. Justice Pitney said, speaking for this court: "It is well settled that an indictment for a statutory offence need not contain an averment that the defendant is not within an excepted clause, unless * |