borne by his brother, except the regular salary of his Somerville housekeeper. This provision for a new residence in New York City was made after suit brought, and the house, when furnished and prepared for habitation, was occupied by his brother Benjamin and his wife and two children, and petitioner had, as I understand the evidence, a comfortable resting place there, but he voted in Somerset county in the fall of this year. He must have known-and he was all the while provided with the most able counsel -that anything in the way of a change of residence might be fatal to the success of his suit already instituted in the state of New Jersey, and I cannot think that he at that time seriously contemplated for even a moment abandoning his thoroughly established domicile in New Jersey for New York, and I infer from the evidence that this work of preparing his brother's house was all done after the filing of the petition, which was on the 2d of September.

Now, with regard to the facts that have been recited, it is proper to say that they are substantially undisputed, except some altogether trifling and immaterial disagreements in the evidence of the parties as to the household establishment at Duke's farm. I recollect but two conflicts upon the real merits of the case. Defendant swore that petitioner never intended to make his farm his home, but that he intended, after spending enormous sums in turning the greater part of his immense, holding of land into a beautiful private park, to make a present of it to the town of Somerville or the county of Somerset-I forget at the moment which. Now, the petitioner swears that he never heard of any such thing until he heard it from the defendant on the stand, and he denies her evidence in that respect in toto. Now, I believe him and not her. I think her story falls as proof of its own weight. Neither the town of Somerville nor the county of Somerset have either the authority to accept such a gift, or the power or financial ability to keep the park in order and properly maintain it, if accepted. The whole idea approaches the absurd.

The other matter is this. The defendant swore that the petitioner, during all these years, did not enjoy his visits to the farm, and did not enjoy remaining there any length of time, and declared that he did not like to be absent from New York, even a few nights at a time. Now, it would have been ungallant, to say the least, in petition. er not to express a desire to enjoy defendant's society continually; and as soon as the postnuptial journeyings were over, and he had recovered from the long and serious disability which he suffered from his gangrene, he immediately transferred his wife to his Somerville home, and apparently tried to domesticate her there, where he could enjoy more of her society. He testified that

he had been very much confined by the exactions of his business relations, but that for the last year or two he had made such business arrangements as to enjoy more liberty and have more time at his command, and to be able to be more at his farm. This fits in with his determination to build there a modern palace for his home life with his wife.

Upon the whole I conclude that the petitioner's domicile was for all these years in the state of New Jersey, that all his declarations in that respect were made in good faith, that whatever of a home he had in New York was not inconsistent with his actual domicile in New Jersey; and, granting that he had a residence in New York, he deliberately chose his domicile in New Jersey, and that choice was made in good faith at a time when its importance and consequences were not of consequence to any then immediate interests. I am further of the opinion that that domicile became, on their marriage, the domicile of the wife as a presumption of law, and that it became such domicile in fact when, in the spring of 1905, he took her out there to live with him as his wife. Thus we have here a matrimonial domicile actually existing up to at least a very short time before the commencement of the suit. Hence I doubt if the question which I mentioned during the argument is raised by the circumstances of this case. That question is whether, where spouses have their home in one state and there live together, and then separate, and one migrates to another state and there establishes a residence and a quasi domicile, which is not matrimonial, such residence or domicile will be sufficient, in the view of the Supreme Court of the United States, to I create such a matrimonial status in that state as will justify the spouse so establishing it, and the state, in taking jurisdiction of the other spouse, not a resident in that state, by extraterritorial service of process. That question, as far as I am at present informed, though thoroughly settled in this state, has never been dealt with by the Supreme Court of the United States. It was on the supposition that this case, as finally developed, might raise that question that I expressed the hope that it might be carried to the Supreme Court of the United States. But while that question, if it had arisen, is one of great importance because of the numerous cases in this country where spouses are called upon to answer each other's complaints by suits in jurisdictions thousands of miles away, in this particular case it is of little importance. It seems to me that it makes little difference to the defendant whether she tries the merits of this case in New York or New Jersey. Indeed, I think the chances of actual justice are better in New Jersey than in New York, because there the issue must be tried be

fore a jury all at one session, uninterrupted except by the hours of rest and holidays, and where either party is liable, especially in a case of this kind, to surprises in the matter of evidence, but which might be, but cannot be, successfully met for want of time, while here hearings may be put over, from day to day and time to time, till all the available evidence bearing on the issue has been produced. It may be said that the infidelity is charged to have taken place in New York City, and hence the witnesses are naturally to be found there, but, as the burden of proof is on the petitioner, that seems to me to furnish no cause of objection by the defendant, and whatever witnesses she may have in New York may be examined there, if unwilling to come to New Jersey.

There is no hint of lack of financial means on the part of the defendant to properly defend herself in this cause. If such lack of means exists, counsel for the defendant know how to remedy it.

I will advise a decree overruling the plea, and directing the defendant to answer within 30 days; and proper verbiage must be added to preserve her right to prosecute her appeal, notwithstanding her answer.

2. DIVORCE-CROSS-BILL ALLEGING JURISDICTIONAL FACTS.

Defendant, in a divorce suit in which the court has ruled that it has jurisdiction, need not allege jurisdictional facts in her cross-bill, incorporated, as it may be, in her answer. 3. SAME-WAIVER OF APPEAL.

Defendant in a divorce suit, who by the order overruling her plea to the jurisdiction has been directed to answer in 30 days or suffer a decree pro confesso, with a provision that the filing of the answer shall not be taken as a waiver of her right to appeal from the order, having taken an appeal, will not by answering be considered to have appeared generally, and so to have waived her appeal.

Petition by James B. Duke against Lillian N. Duke for divorce. Defendant moves to stay proceedings pending appeal. Denied.

Chauncey G. Parker and Samuel Kalish, for the motion. R. V. Lindabury and Mr. Fuller, opposed.

PITNEY, V. C. This is a motion on behalf of the defendant to stay proceedings pending an appeal from an interlocutory decree. The order appealed from was one overruling a plea to the jurisdiction of the court, which was heard on the merits upon evidence adduced in open court. The order overruling it directed the defendant to answer within 30 days or suffer a decree pro confesso. A special clause, however, was added by my directions in these words: "The filing of said answer shall not be taken as a waiver of the right of the defendant to appeal from this order, or as a bar thereto." The general rule of practice of this court, which has not been disturbed by any statute, is that an appeal from an interlocutory order does not stay proceedings unless this court shall hold that they should be stayed for reasons applicable to the particular case. Many reasons can be imagined in special cases why this court should say: "Let us stay proceedings until we hear what the Court of Appeals has to say." But, I repeat, the unvarying practice of this court is to proceed on the idea that its orders and decrees are final and binding, precisely as if there were no appeal. If counsel will consider, they will perceive that it is quite impracticable to conduct the business of the court on any other basis. It is overlooked oftentimes because it is so easy to appeal, but it ought not to be overlooked. Now, I am asked to exercise the discretion of this court to stay proceedings pending this appeal, on, as I understand the arguments which have been addressed to me, three grounds:

First. Counsel insist that the decree which I advised on the 21st ult. was based upon such a doubtful set of facts that I ought not to subject the parties to the expense of a litigation on the actual merits of the case until the opinion of the Court of Appeals has been taken on the subject. Now, if I felt that the result at which I arrived is a matter of serious doubt as to its accuracy, and, further, that it would be a hardship for the parties to be compelled to litigate the actual merits of the case on which the petitioner has put himself in his petition, I might feel disposed, if there were not other serious considerations leading to an opposite conclusion, to grant the motion. But in fact I do not feel the least doubt about the correctness of my ruling the other day. Moreover I do not think that there is any hardship in compelling the parties to proceed. The petitioner, in exercising his rights in that behalf, proceeds at his risk. If he shall succeed and show that the defendant is guilty of the serious marital offenses with which he charges her, and she subsequently succeeds, either in our own Court of Appeals or in the Supreme Court of the United States, in showing that this court was without jurisdiction, or, what is the same thing, power, to proceed

against her, any decree that this court may have rendered in the meantime against her will at once become null and void, and it will be the duty, and I may add, the pleasure, of this court to so declare by its decree annulling the former decree. If, on the other hand, the petitioner shall fail to make good his charges, and the defendant shall be acquitted, and declared innocent thereof, then I feel quite sure that she will have no cause to complain. With regard to the expense of the litigation, I remarked the other day, in disposing of the plea on its merits, that there could be no difficulty on that score. If the defendant is in the least degree impecunious, her counsel are well aware of her remedy in that respect.

But there is another consideration of great importance in determining this matter. In the present unfortunate condition of business in our Court of Appeals there is little hope of this appeal being reached and determined within a year, and, if determined adversely to the defendant, her plea is so framed, and intentionally so framed, that she will be entitled to an appeal to the Supreme Court of the United States, if that court will take cognizance of an appeal from an interlocutory order of this nature before final decree, where another two or three years, at least, will elapse before it will be reached and disposed of. I think it would be oversanguine to expect it could be finally disposed of within five years. And the same reasons which the counsel now urge for a stay pending an appeal to our Court of Appeals, will be equally potent for a stay pending the appeal to the Supreme Court of the United States. Now, all that delay might possibly be incurred without serious prejudice to the parties, if the subject-matter of the litigation were of a nature which would not be seriously injured during the appeal, and if the evidence in support of the right of the party appealed against were of such a nature say of record or of documents-as to be absolutely protected against danger of loss.

But such is not the present case. Notoriously, the evidence of matrimonial offenses rests in the memory of witnesses who are liable to die or wander beyond the reach of the process of the court, and whose memories fade, and who, after a lapse of years, when put upon the stand as witnesses, answer the questions put to them with a non mi ricordo. This consideration alone is, in my judgment, of very great weight against the exercise of the discretion asked by the defendant. Moreover, the subject-matter of this suit is the marriage relation. The evidence adduced before me on the hearing of the plea was of such a nature as to render it impossible to suppose that the petitioner was not and is not acting in good faith in prosecuting his suit. Now, pending this suit the petitioner is, of course, debarred from the privilege of entering into the marriage state, so that the

case resembles somewhat the exclusion of a life tenant from the enjoyment of his estate with no remedy for such exclusion. Every consideration, then, that I can conceive ought to influence the court in a case of this kind, is against granting that delay.

The second matter urged by the defendant is that she has in mind the putting forth of a counterclaim against the petitioner. The answer to that argument is that she is at liberty, quite irrespective of the present proceedings, to sue her husband for relief on any claim which she may have, and it is not necessary that it should take the shape of a cross-bill to his petition herein. She may bring an independent suit, either in New York or New Jersey, as she shall choose and be advised, for it abundantly appears that petitioner is amenable to process in either state, and she may, in that suit, entirely ignore the existence of the present suit. If, however, it be the object and desire of the defendant not to destroy, but to preserve, the marriage relation, and to use the charge, which she suggests that she has good ground to make against the petitioner, only and strictly as a defense to the present action for the purpose of enforcing the equitable doctrine of in pari delicto, I am still unable to see how she is prejudiced or embarrassed in setting up such defense any more than she will be prejudiced or embarrassed in answering by way of traverse.

It was suggested that it would be necessary for her, in order to file a cross-bill by way of defense, to allege therein the statutory grounds of jurisdiction, namely the residence of the petitioner (defendant in her cross-bill) in this state, and thereby admit the jurisdiction of this court in this cause. But I do not so understand the practice. Subject to her appeal, she is now, against her protest, within the jurisdiction of the court, and is entitled to make any defense which the law of the land and the practice of the court allows to her, and the defense of guilt on the part of the petitioner is one of those defenses, and, as it seems to me, it is a good defense, if simply set up in her answer without resorting to the machinery of a cross-bill, which seems to me to be necessary only in case she asks for affirmative relief against the petitioner, and that relief she can only get in case she proves in the end to be herself innocent. But in any aspect of the case her cross-bill, incorporated, as by the practice' it may be, in her answer, requires no alle gation of jurisdictional facts, because, as before remarked, the court has already entertained that jurisdiction, and it would be entirely inadmissible for the court to entertain a motion to strike out the pleading for want of that allegation.

Third. But the matter mainly relied upon by the defendant is this: That under a decision of our Court of Appeals, if she shall now answer the petition, she will thereby be deemed to have appeared generally to the

action, and will thereby lose the benefit of the appeal, notwithstanding the special clause added to the order above referred to. Counsel for the petitioner claims that her right to prosecute her appeal, notwithstanding her answer, was perfectly safe without that special clause. That may be, and its insertion at my suggestion may have been quite unnecessary. Be that as it may, I am unable to conceive that her answer under the spe.cific direction of the court, accompanied, as it is, with a direct threat of a decree pro confesso against her if she fails, can possibly be held to be a waiver or abandonment of her appeal, or a bar to its prosecution, or a general appearance in the cause.

Counsel argued that the moment she answered the petition a motion would be made against her to dismiss her appeal, and that the court will dismiss it in strict pursuance of the doctrine of a case which they cite. I cannot so believe. The case relied upon is Polhemus v. Holland Trust Company, 59 N. J. Eq. 93, 45 Atl. 534, and, on appeal, 61 N. J. Eq. 654, 47 Atl. 417. There the complainant proceeded against the Holland Trust Company, by service upon an agent, in this state, as I understand the report, though it may be that the service was extraterritorial. Reading from page 98 of 59 N. J. Eq., page 536 of 45 Atl., I find that the learned Vice Chancellor uses this language: "In the second place, a plea to the jurisdiction of this court to take cognizance of the subject-matter of the suit was filed to the bill, and the ground of such plea was that the defendant was a foreign corporation not amenable to service of process in this state. The plea was overruled upon the single ground that if the person who, it was alleged in the bill, sold the bonds in this state, at the time he made the false representations set out in the bill, was the agent of the trust company to sell such bonds, then the cause of action arose here, and this fact conferred jurisdiction upon this court in this state. The court refused to try the question of agency under the issue raised by the plea, because it involved directly the whole merits of the controversy, and because the facts stated in the plea, being such as defeated the suit, could be pleaded as such, and therefore were not a fit ground for a plea to the jurisdiction of the court. National Condensed Milk Co. v. Brandenburgh et al., 40 N. J. Law, 112. The plea being stricken out, the objection to jurisdiction was reserved in the answer." No appeal was at any time taken from the order striking out the plea. An answer was filed, and the cause tried on its merits, and the bill dismissed. An appeal was taken by the complainant, but none by the defendant, and came on for hearing, and the result is reported in 61 N. J. Eq. 654, 47 Atl. 417, and the decree of the Chancellor was reversed on the merits. The counsel for the defendant and appellee attempted to raise the question of jurisdiction of the person of the defendant trust company by virtue of a

clause inserted in its answer, setting up want of jurisdiction substantially as pleaded in the plea which was overruled. The Court of Appeals held that this could not be done under the well-settled practice of this court, and that the defendant should have appealed from the order overruling his plea, and, not having done so, its answer must be considered as a voluntary appearance, and an abandonment of its plea. This is the language used by the Court of Appeals on that subject: "If the plea was wrongly overruled, the remedy was by appeal; if rightly overruled, the answer still stood. The defendant did not appeal, but voluntarily submitted to a trial on the merits under its answer and a general replication. It could not, on final hearing, object to the jurisdiction to which it had submitted." The essence of that decision is that the appearance by answer was voluntary. But, in my judgment, it is quite plain that it would not have been voluntary if the defendant had appealed from the order overruling its plea. Instead of doing that, it acquiesced in the accuracy of the court in overruling its plea, and it was that acquiescence which was fatal to the defendant's objection. The Court of Appeals did not decide that if the defendant, before answering, had appealed from the order overruling its plea, the court would have refused to hear its appeal, and would have refused to give the defendant the benefit of any error found therein, which is the question here. The case is an illustration of what I said before about the presumption that all orders made by this court are absolutely just and right until reversed upon appeal, and it cannot be presumed or averred that any of them are wrong until they are reversed upon appeal.

Now, in the present case the defendant has appealed from the order overruling her plea, and thereby she protests against its accuracy and justice. If, notwithstanding that appeal and protest, she shall, under threat of a decree against her, answer the petition, I think it would be quite absurd to hold that she voluntarily appears to the action and loses the benefit of her appeal. She has in fact done all that she can to object to the jurisdiction of the court, and any further proceedings that she takes ought not to be treated as voluntary, but as compulsory. That was the view taken by the Supreme Court of the United States in Harkness v. Hyde, 98 U. S. 476, 25 L. Ed. 237. There a party who had been subjected to extraterritorial service appeared specially for the purpose of setting aside the process as improperly served, and his motion in that behalf was overruled. He then answered, and went to trial on the merits. The Supreme Court of the United States held that such answer was not a waiver of the lack of jurisdiction. I read from page 479 of 98 U. S. (25 L. Ed. 237): "The right of the defendant to insist upon the objection to the illegality of the service was not waived by the special appearance of

counsel for him to move the dismissal of the action on that ground, or, what we consider as intended, that the service be set aside, nor, when that motion was overruled, by their answering for him to the merits of the action. Illegality in a proceeding by which jurisdiction is to be obtained is in no case waived by the appearance of the defendant for the purpose of calling the attention of the court to such irregularity. Nor is the objection waived when, being urged, it is overruled, and the defendant is thereby compelled to answer. He is not considered as abandoning his objection because he does not submit to further proceedings without contestation. It is only where he pleads to the merits in the first instance, without insisting upon the illegality, that the objection is deemed to be waived." The record shows that the defendant in this cause did in the first place move to set aside the service in this case because made out of the jurisdiction, and the motion was overruled, with leave to file a plea to the jurisdiction. I suppose that practice was adopted in order to enable the defendant to have the case put in shape to give her a right of appeal to the Supreme Court of the United States. It is further to be observed that in the Supreme Court of the United States there is neither writ of error nor appeal until final judgment or decree. For these reasons I am entirely satisfied that the defendant is in no danger of losing the benefit of her appeal by answering the petition, and I shall therefore decline to grant a stay.

This motion for a stay was renewed to the Court of Errors and Appeals on Friday, January 5, 1906, and was refused.

(70 N. J. E. 71)

LONG BRANCH COMMISSION v. TINTERN MANOR WATER CO. (Court of Chancery of New Jersey. Nov. 1905.)

1. WATERS AND WATER COURSES-MUNICIPAL SUPPLY-CHARGES-REGULATION.

Where a water company was organized to supply certain municipalities, under P. L. 1876, p. 318 (Revision 1877, p. 1365), requiring the consent in writing of the corporate authorities proposed to be supplied, a municipality had power to impose terms as to the rates to be charged for both public and private consumption.

[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Waters and Water Courses, § 292.] 2. SAME-CONTRACTS FOR SUPPLY-MODIFICA

TION.

Under P. L. 1876, p. 318 (Revision 1877, p. 1365), providing for the organization of a water company to afford supply to a municipality, and authorizing a municipality to make contracts for a period not exceeding 10 years, the municipality has power to revise its contracts with the water company as to rates for public and private consumption at the end of every decade.

3. SAME.

A municipality, independent of statute, has power and owes a duty to protect its inhabitants against extortion in the price charged for water supplied by a private corporation furnishing water to it for public and private consumption, and to compel the corporation to furnish water at reasonable rates.

4. SAME-ESTABLISHMENT OF RATES-REASONABLENESS-METHOD OF DETERMINATION.

In a suit to determine reasonable rates at which a water company should be compelled to furnish water to a city for public and private. consumption, such rates should be established as would enable the water company to derive a fair income, based on the fair value of its property at the time it is being used by the public, taking into account the cost of maintenance or depreciation, current operating expenses, and the right of the public to have no more exacted than the service in itself is reasonably worth, including a fair income to the stockholders on their investment.

5. SAME REASONABLE RATES.

Rule for the establishment of reasonable rates to be charged by a water company for furnishing water to a city applied, and rates fixed for the various services performed.

Action by the Long Branch Commission against the Tintern Manor Water Company, to restrain defendant from cutting off water supply to the city of Long Branch and to fix reasonable rates for such supply. Decree for complainant.

Robert H. McCarter and C. G. Van Note, for complainant. William H. Corbin, for defendant.

PITNEY, V. C. The municipal government of the borough of Long Branch (the Long Branch Commission) by its bill, filed July 31, 1903, as originally framed, sought an Injunction against the Tintern Manor Water Company, which for many years (under the name of the Long Branch Water Supply Company) had been, and was still, supplying Long Branch and its inhabitants with water, to enjoin it from carrying out a threat recently made in writing to discontinue its supply of water to the municipality for public purposes, unless the municipality should pay certain arrears of dues for water furnished it for about two years then last past. On the return day of an order to show cause why such restraint should not be granted, it appeared that the contest arose out of a dispute as to the rates to be charged by the water company, not only to the municipality for public purposes, but also to private consumers. In fact, it was practically a continuation, in another form, of the contest, instituted by a citizen, but in fact supported by the municipality, in the Supreme Court, of which a report is found in Hicks v. Long Branch Commission, 69 N. J. Law, 300, 54 Atl. 568, 55 Atl. 250. It further appeared that the dispute at the present moment, August, 1903, was not so much over the terms of the agreement which was defeated by the Hicks suit, and which was, as we shall see further on, sufficiently favor