text:
    Charles H. Wood v. Anna M. Wood.
    [Filed September 20th, 1902.]
    ■ 1. In divorce by a husband on the ground of desertion, the burden is on the husband, in order to prove a willful and obstinate desertion, to show affirmatively that the wife left of her own choice, against his will, and that she continued to stay away when it was her duty to return.
    2. In divorce by a husband on the ground of desertion, even if it bo shown that the original separation was wrongful on the part of the wife, yet he must show that he has sought, by proper steps, to bring about her return.
    On petition for divorce for desertion, answer and proofs.

      Mr. John E. Fori, for the petitioner.

      Mr. Fredericlc A. Rex, for the defendant.
   Grey, V. C.

(orally).

This matter is, in my view, so clear that I do not care to hear counsel for defendant, and I will dispose of it at once.

The petitioner in this case alleges that the defendant, having been married to him for some twenty years, willfully, continuedly and obstinately deserted him, in the month of March, 1899; that she refused to return to him, although requested so to do; that she has lived apart from him ever since. For these reasons he prays that he may be divorced from her, and that the marriage tie may be decreed null and void.

These are proper allegations by a husband who seeks a divorce for the cause of desertion. When he makes such a charge, he undertakes the burden of proving it—that is, he must produce testimony which, in its credibility and weight, is more convincing to the court than that which is brought here against his claim.

It is impossible to say that the testimony offered here by the petitioner carries the burden of proof. Our courts have laid down the principles which govern in eases of this character so clearly that there is no doubt about them. This case is controlled by the rule expounded in the court of chancery, in Bowlby v. Bowlby, 10 C. E. Gr. 407; affirmed in the court of appeals, 10 C. E. Gr. 570. That was a bill filed by the husband for divorce from his wife for desertion. The separation had existed for some years, the wife having left the husband. The question was immediately raised as to how and why it was she had left him. The burden was upon the husband, in order to prove a willful and obstinate desertion, to show affirmatively that she left of her own free choice, against his will, and not by reason of any compulsion or consent on his part, and that she continued to stay away when it was manifestly her duty to return.

The court said in that case: “Whether the beginning of the separation was not by his consent and by his aid is a question in respect to which the evidence is conflicting. She swears that it was, and he swears that it was not. They were both examined as witnesses before me, and, after hearing and considering their testimony, in connection with other evidence, I am quite unable to say that his testimony is entitled to more weight than hers.”

The husband failed affirmatively to show that the desertion was against his will.

In the present case the husband testifies that there were differences because of his exercise of parental authority over the children, and that, during his absence and without his knowledge or assent, his wife broke up the household, by moving a large part of the furniture away. The substance of his statement is that she, against his will, destroyed their home life. He is the only witness who sustains this aspect of the case. A carter, who moved the goods, shows that it was done at the direction of the wife, but he knows nothing of what led her to give that direction.

The defendant wife and her two children (young women, one of full age, the other about nineteen) testify that the breaking up of the household was brought about by the petitioner’s deelaration that he would no longer pay the rent of the house, and his insistment that the mother and daughters should earn their own living without aid from him. They say the moving wa's with the knowledge and assent of the petitioner, and by previous arrangement with him. They are corroborated by the undisputed fact that neither at the time of the destruction of their home life nor since has the petitioner done anything looking to the resumption of marital relations with his wife or providing for her support.

If there is any difference in the credibility and weight" of these contradictory statements, the defendant’s evidence is more worthy of acceptance. It is .the petitioner who asks an affirmative decree, and to obtain it he must carry the burden of proof. He alleges that his wife deserts him. That means that she has willfully, continuously and obstinately abandoned him, as her husband, for two years next before the filing of the petition. He fails to carry the burden, for his testimony does not satisfactorily show that the defendant willfully—that is, of her own choice and without his assent—began the separation.

As to the element of obstinate desertion, the rule is well established, as declared by this court in the Bowlby Case, that even if it be shown that the original separation was willful and wrongful on the part of the wife, and that she left her husband when she ought not to have gone, yet, under those circumstances, the husband, being the head of the household, was bound to do what he could, as a just man, to bring about her return. Bowlby v. Bowlby, 10 C. E. Gr. 410, citing Cornish v. Cornish, 8 C. E. Gr. 208.

The evidence shows that in the present case the husband made no effort to induce the wife to resume their marital relations. Indeed, the tendency of the proofs is to indicate that he was well content to have her stay away, and that he desired to resume the privileges of an unmarried man.

The judgment in Bowlby v. Bowlby was based on these two grounds—the husband’s failure to prove, by the weight of the evidence, that the wife separated herself from him, by her own willful act, against his wishes, and his failure to show that her continued separation thereafter was obstinate, against his own manifestation of a desire for her return. The cause now under consideration presents the same situation.

There are cases which hold that an indication, by the wife, of an unchangeable purpose to separate from her husband, will excuse him from soliciting her return (Lammertz v. Lammertz, 14 Dick. Ch. Rep. 649), and undoubtedly conduct on her part-which would be in itself cause for divorce would relieve him from that duty.

An effort was made by the petitioner to show that the wife had been guilty of improper conduct, which justified him in refusing to live with her. His claim is that the wife was so familiar with a young man who boarded in the family that he was justified- in believing- her to be false to him. The proof entirely fails to show this to have been true. One instance only is stated which exhibits an indication of indecorous conduct— the alleged finding of the wife and daughters and the young man sleeping in the parlor at an early hour in the morning. This story is not credible in itself, and is related, only by the testimony of the husband. He fixes the date of the incident a considerable time before the separation. He does not himself relate the separation as having been occasioned by that event, nor does he show that he acted, at the time, as any man would who has discovered such an intrusion upon the decencies of his family life, and he is flatly contradicted as to the whole matter by his wife and both daughters, who deny that it ever happened.

There seems to have been no excuse- for the husband’s omission to invite the wife to return to him, which is necessary, under the circumstances of this case, to show that her desertion was obstinate. On the other hand, there is proof that she desired to re-establish the family relation; that she asked him to come back to her, and that it was the husband’s indifference or opposition which defeated the accomplishment of the wife’s wishes.

Charges of misconduct on the part of the husband have been suggested, which it is not necessary to consider. The petitioner’s case fails for want of proof, by the weight of the evidence, of either willful or obstinate desertion by the wife. The complaint must be dismissed, with costs.

Mr. Rex—Should there not be a counsel fee allowed the defendant ?

The Vice-Chancellor—I have allowed $25 already. I will allow an additional counsel fee of $15 to the defendant.


source: Caselaw Access Project

author: Grey, Y. C.

license: Public Domain

text:
    The Grand Lodge of the Ancient Order of United Workmen of New Jersey v. Lydia Gandy et al.
    [Filed October 1st, 1902.]
    1. A beneficiary certificate of the Ancient Order of United Workmen declares that it is issued upon the express condition that the member shall in every particular comply with all the laws, rules and regulations of the order. The certificate and the constitution and standing regulations of the order constitute the contract which controls the payment of benefits.
    2. The regulations provide that in changing his beneficiary, the member shall fill out the blank form on the back of his certificate, authorizing the change, and shall have his signature thereto attested by the recorder of his lodge with the seal of the lodge attached, or by some civil officer qualified to administer oaths. The blank form on the back of the certificate contains a revocation of the preceding direction for payment of the benefit and an express order to pay it to the newly-selected beneficiary. The regulations also declared that this provision might, in special cases, be waived by the grand lodge at its option. A member had designated his wife as his beneficiary. She predeceased him. Some years after her death the member attempting to change his beneficiary without filling in or signing the blank form on the back of his certificate, or in terms revoking his former appointment or expressly directing payment to a new beneficiary, but by declaring in a separate signed affidavit, that he desired the change-in favor of the new beneficiary. The grand lodge did not waive the observance of the provisions recited.—Reid, this attempted appointment of a new beneficiary did not comply with the rules of the order by which the members had agreed to be bound, and was incompetent to take away the benefit from the member’s children who were entitled to it by the-standing regulations of the order, unless other direction had been effectually made.

      3. The regulations also provide that each member should designate the person who might at his death receive his benefit, but that such person in every instance should be a member of his family, or related to him by blood, or be dependent upon him, or be his affianced wife. The member stated in his affidavit that “it is solely because of the dependency of the said L. G. that he desires the change in her favor,” &c. In actual fact L. G. was not a member of his family, nor related to him by blood, nor a dependent upon him, nor his affianced wife. She- was a servant in his employ to do household work, for agreed weekly wages.—Held, L. G. was not within any class from which a member of the order had power to select a beneficiary, and the attempted appointment failed for this reason.
    4. The attempted new appointment being nugatory the member’s children are entitled to the benefit fund under the standing regulations of the order.
    On bill of interpleader. Hearing on the claims of interpleading defendants.
    This case arises under an interpleader bill filed by the Grand Lodge of the Ancient Order of United Workmen of New Jersey, an unincorporated and fraternal benefit society, doing business in the State of New Jersey. The defendants are Mattie George and Harry B. Middleton, children who have survived their father, Frank P. Middleton, and Lydia Gandy, who appears to have been named as a beneficiary in a certificate issued by the complainant society, under circumstances hereinafter narrated.
    The bill shows that Frank P. Middleton, on December 16th, 1880, became a member of the complainant society, and that he continued his membership until his death, on Februarj’’ 16th, 1903; that pursuant to the laws of the society, he designated his wife, Mary Middleton, as his beneficiary to receive, at his death, the sum of $3,000 from the society’s beneficiary fund; that Mary Middleton predeceased her husband. The bill alleges that, under the laws of the society, from Mary’s death until Frank P. Middleton should make another lawful designation of a beneficiary, his two children, the defendants Mattie George and Harry B. Middleton, became and remained his lawful beneficiaries, and that said Frank P.’ Middleton died leaving his said two children him sxirviving.
    The bill further alleges that, on the 36th of December, 1901, Frank P. Middleton made an affidavit whereby he purported to set out circumstances which would be sufficient to show that Lydia Gandy bore to him the relation of a dependent (which, being established, would bring her into the class of persons designated as beneficiaries under the laws of the complainant society), and sent the affidavit to the office of the grand recorder, of the complainant society, pinned to the original beneficiary certificate issued to him on his admission to the order; that thereupon, unadvisedly and without warrant of law for so doing, and in violation of the laws of the order, a new beneficiary certificate was issued, wherein Lydia Gandy was designated as beneficiary of the said Frank P. Middleton; that the new beneficiary certificate remained in the possession of Middleton at the time of his death, and the mistake of the complainant society’s officer in issuing it was not discovered until after his death.
    The bill then sets out the clause governing the society’s members in making a change in the designation of beneficiaries (which may be found on page 27, paragraph 7, of the constitution and standing regulations of the society), in words following:
    “7. Change of Beneficiaries.—Any rhember desiring to change his beneficiaries may do so in the following manner: He shall fill out the blank form on the back of his beneficiary certificate authorizing the change; he shall have his signature attested by the Recorder of his Lodge and the seal of the Lodge attached thereto, or attested by any civil officer qualified to administer oaths. When this is done he shall deliver his beneficiary certificate to the Recorder of his Lodge, together with a fee of fifty cents. The Recorder shall forward the said certificate and fee to the Grand Recorder, who shall make a record of the change on the books of the Grand Lodge and shall issue a new certificate in lieu thereof, payable as directed on the back of the surrendered certificate.' The new certificate shall bear the same number as the old one, which shall be safely filed and preserved. The provisions hereof, in special cases, may be waived by the Grand Lodge at its option.”
    The bill further alleges that Middleton did not affix his signature to the form provided on the back of the original certificate for making a change of a beneficiary, and that there was no attestation of his signature by the recorder of his lodge, or in any other way, and that he did not, in the manner required by the laws of the society, change his beneficiary, yet, through inadvertence, a new beneficiary certificate was issued to him.
    The bill then narrates that Miss Gandy, under the new certificate, and Mr. Middleton’s two children, under the laws of the society, claiming the new certificate to be inefficient, each claim from the complainant the payment of the benefit sum of $2,000. It contains the usual allegation of non-collusion of the complainant with either ■ party, and that it has not been indemnified by either, and concludes with a prayer that, upon its payment into this court of the benefit sum of $2,000, the defendants may be decreed to interplead and the complainant may be discharged from all liability to either of them in the premises.
    A decree has been taken against the defendants adjudging that the bill of interpleader was properly brought by the complainant; that it is entitled to relief, and that it be dismissed from the further prosecution of the suit, with its costs and a fee, and be discharged from all liability to either of the defendants in the suit by reason of the fund in question, and that the defendants interplead and adjust their several demands in comtroversy in this suit as between themselves.
    The defendants have filed their interpleading claims. Lydia Gandy under the new certificate issued to her, and Mattie George and Harry B. Middleton, children of Frank B. Middleton, claiming under the regulations of the society (found on page 26, in paragraph 6, of the constitution), of which the applicable part is as follows:
    “6. Order of Payment to Beneficiaries.-—If one or more of the beneficiaries shall die during the lifetime of the member, the surviving beneficiary or beneficiaries shall be entitled to the benefit equally, unless otherwise provided in the beneficiary certificate, and if all the beneficiaries shall die during the lifetime of the member, and he shall have made no other direction, the benefit shall be paid to his widow, if living at the time of his death; if he leaves no widow surviving him, then said benefit shall be paid, share and share alike, to his children,”
    with further limitations not applicable in this ease.

      On these pleadings the respective parties submitted testimony and argued the cause.

      Mr. Florance Garrison Toram and Mr. Edwin G. 0. Bleakly, for Mattie George and Harry B. Middleton.

      Mr. Thomas B. Rail, for Lydia Gandy.
   Grey, Y. C.

The relátion created by a certificate issued by a beneficial association, such as the complainant society, has been authoritively declared to be contractual. The terms of the contract are to be discovered in the language of the certificate, read in connection with the rules and by-laws of the society. It is to be construed and given force and effect as other contracts are which deal with similar subjects. Golden Star Fraternity v. Martin, 30 Vr. 213 (Court of Errors and Appeals).

In that case the plaintiff in error was an incorporated society. Golden Star Fraternity v. Martin, 30 Vr. 210. In the present case the complainant is a voluntary beneficial association, not incorporated. The statute of 1885 (Gen. Stat. p. 2588 § 321+) enables a voluntary association, organized for benevolent purposes, to be sued by its recognized name, but does not authorize it to bring a suit in the name of the organization. Mayer v. Journeymen Stonecutters' Association, 2 Dick. Ch. Rep. 520. In the suit now at bar the complainant did, in fact, prosecute this suit by its recognized name, without opposition; has paid the fund in dispute into court, and has been dismissed, and is no longer a litigant. The present parties in court are Miss Gandy, on one side, and Mr. Middleton and Mrs. George, on the other. There is no question of their capacity to sue and be sued, so that whatever may have been the infirmity of the complainant in this interpleader suit to bring its action by its recognized name, it is no longer of any significance.

A contract entered into with a voluntary unincorporated association does not differ, in its essential nature, from one entered into with an incorporated body. The principles declared by the court of appeals in the above-cited cases are therefore applicable to the decision of this case.

The standing regulations of the Ancient Order of United Workmen prescribe that each member shall designate the person to whom the benefit, due at his death, shall be paid. Mr. Middleton designated his wife as the person to whom his benefit should be paid. She predeceased him. The regulations provide for this contingency, and declare that if the beneficiary dies during the lifetime of the member, and he makes no other direction, the benefit shall be paid, in the first place, to his widow, if living at the time of his death, and if not, then share and share alike to his children.

Mrs. Middleton having predeceased Mr. Middleton, this rule operated to give the benefit to Mr. Middleton’s children, Mrs. George and Harry B. Middleton, unless Mr. Middleton, in his lifetime, prevented the operation of this standing regulation of the society, by making some effectual direction changing his beneficiaries from his children to some other person who was within some of the classes from which he might select. '

Miss Gandy, the other party in this controversy, insists that there was a direction in her favor made by Mr. Middleton, in accordance with the regulations of the order, whereby he changed his beneficiary, so that she (Miss Gandy), and not Mr. Middleton’s children, is entitled to receive the benefit.

Miss Gandy’s claim is opposed by the Middleton children as invalid, upon two grounds:

First. That the mode in which Mr. Middleton attempted to change his beneficiary, selecting Miss Gandy in the place of his children, did not accord with the requirements of the standing regulations of the society.

Second. That even if there was a substantial compliance by Mr. Middleton with the methods prescribed by the rules of the order in making the change, still Miss Gandy was not within any class from which, under the rules of the order, a beneficiary could be selected.

As to the first point, the rules of the order require (paragraph 7) that the member desiring to change his beneficiaries

“shall fill out the blank form on the back of the beneficiary certificate authorizing the change; he shall have his signature attested by the Recorder of his lodge and the seal of the lodge attached thereto, or attested by any civil officer qualified to administer oaths.”

The regulations further require that the member shall deliver this certificate to the recorder of his lodge, with the fee, and provision is made that the recorder shall forward the certificate and fee to the grand recorder, who shall make a record of the same in the books of the grand lodge, and issue a new certificate in lieu thereof, payable as directed on the back of the surrendered certificate. The new certificate shall bear the same number as the old one, which shall be safely filed and preserved. The regulations further declare that these provisions, in special cases, may be waived by the grand lodge at its option.

It will be noted that the above specification of the steps to be taken to effect a change of beneficiaries is not only mandatory upon the members, but that it deals with and declares the method whereby, in special cases, the observance of the prescribed. provisions may be waived. In such a contract the prescribed method must'be followed, unless waived in the manner agreed upon in the contract. No other mode of waiver can be shown without departing from the terms of the agreement.

In the case in hand Mr. Middleton did not make the change in favor of Miss Gandy in the mode prescribed by the rules of the order, nor did the grand lodge exercise its option by waiving the observance of the provisions of those rules. What Mr. Middleton did was to send an affidavit, made by himself, on December 26th, 1901, before a notary public, deposing that Miss Gandy had been in his employ and a member of his family for a number of years last past; that she had no means of support, and was wholly dependent upon such wages or remuneration as she received from him for her support; that in ease of his death she would be entirely without means of a livelihood, and that it was solely because of the dependency of Miss Gandy that he desired the change, in her favor, of his benefit certificate, his wife and former beneficiary being deceased. This affidavit appears in this case, pinned to the original benefit certificate. The original benefit certificate is stamped “Canceled Dec. 27th, 1901, J. H. Lippincott,” who is shown to have been the grand recorder of the order. Immediately under the stamping cancellation, on the face of the original benefit certificate, these words are written: “This certificate was canceled and a new one issued to Lydia Gandy in error. J. H. Lippincott, Grand Recorder.” This memorandum appears to have been written after Mr. Middleton’s death.

It will be observed that Mr. Middleton did not comply with the regulations of the society by the affidavit above recited. He did not fill out the blank form on the back of the beneficiary certificate, authorizing the change, and attach his signature thereto. The affidavit is not even a substantial compliance. The blank form is, in terms, a revocation of the former direction, and an express authorization and direction to pay the benefit of the new appointee bearing relationship to the member to be stated. The affidavit does not declare a revocation of the former direction, nor does'it authorize and direct payment to Miss Gandy, except so far as the affiant declares that he desired the change in her favor.

It is claimed that all of the prescriptions of the mode in which a change of beneficiary should be accomplished are mere forms, the observance of which was waived. The rule in question is most carefully drawn, and is obviously not a mere form. The society consists of various subordinate lodges, located all over the country, at places distant from each other. Hundreds of persons are members of the order, and it is impossible for the officers of the grand lodge to be personally acquainted with each member of the subordinate lodges. It is, therefore, obviously necessary that there should bo some means of certain identification, whereby the officers of the grand lodge may know that the party seeking to make the change is the member who holds the certificate to be affected by the change. For this reason the member desiring to change his beneficiary certificate is required to fill out the blank form on the back of his own beneficiary certificate, and to have his signature attested by the recorder of his local lodge, or by some competent civil officer. It is easy to see that, in the hundreds of cases which come before the general officers of the order, the observance of the exact rule of changing beneficiaries, by which the certificate itself contains an endorsement of the change, may be of the greatest importance. If the change can be made by separate .affidavit or letter, or by any mode other than that prescribed by the rules, endless confusion might ensue.

It is further claimed that Mr. Middleton is to be excused from observing the mode prescribed by the regulations of the society in changing his beneficiary, because, at the time he desired to make the change, he was so ill as to be unable to leave his chamber and attend at the meetings of his local lodge. The regulations of the society did not require that he should attend .a meeting of the lodge in order to change his beneficiary. All he was required to do was tó fill out the blank form on the back of his certificate and have his signature attested by the recorder, &c. This might have been done in his sick chamber.

It is further insisted that the acceptance of the surrender of the old certificate, and the issue of the new one in favor of Miss Gandy, was a waiver of performance of the prescribed mode of change by the society, and that no one else can question its action. The proof is that the acceptance of the surrender of the old certificate, and its cancellation, and the issue of the new ■one, was the inadvertent act of some of .the officers of the grand lodge, who did not notice the defects of the attempted change. They endeavored to correct their mistake by their endorsement on the certificate to the effect that its cancellation was an error. Nothing in the case shows that these officers, perceiving the defects of Mr. Middleton’s attempted change of beneficiary, considered the question of waiving observance of the regulations, and decided that they should, in this case, be waived. If they had done so, their action would have been invalid, because the standing regulations of the society expressly reserve the right to waive observance of the rules as to the mode of changing beneficiary to the option of the grand lodge itself. There is no attempt to show that the grand lodge acted in any way on this matter.

On the surrender of the original benefit certificate, a new one was issued by the order to Mr. Middleton, on December 30th, 1901, which designated Miss Gandy as the beneficiary. It is on this certificate, inadvertently issued, in breach of the regulations-of the order, that she bases her claim. After Mr. Middleton’s death it appears to have been brought to the notice of the officers-of the order that they had canceled the original certificate, and issued the new one, without Mr. Middleton having complied with the regulations of the society. The officers of the local lodge appear to have interested themselves in endeavoring to secure for Miss Gandy the $2,000 benefit, now come to be payable. The recorder of the local lodge drew up a letter, addressed to himself, dated February 22d, 1902, which he obtained to be signed by Mrs. George and Harry B. Middleton, children of Frank P. Middleton, the deceased member. The following is a copy of the letter, to which the recorder of .the local lodge, being himself a notary public, appended the jurat:

“Camden, N. J., 2-22, 1902.
“To &. Test, Recorder of Provident Lodge, No. J¡, A. O. XJ. W. N. J.:
“Dear Sir—In answer to your verbal communication and questions we would say that we, the undersigned, are the only children of Frank P. Middleton, deceased, who was a member of Provident Lodge, No. 4, A. O. U. W., when he died.
“He held a beneficiary certificate, No. 309, in said order, which was-made payable to Lydia Gandy, for $2,000 and named ‘a dependent’ in said certificate, when he made the same payable to her, in consideration-of said dependency and being a cousin of his, the said Frank P. Middleton, deceased, we heartily accord with his wishes and designation of the payment of said sum to her by your order, and hereby waive any and all claims we might otherwise have against such payment, as bis children, or against such sum ($2,000) being paid to her by your order on account of his death. We will further state that we will endeavor to do all in our power, and of our own volition, without any influence whatever (in doing or saying this), on the part of any other person or persons, and will assist the said Lydia Gandy to obtain the said amount ($2,000) due to her which is just and rightly due her, as our father, Frank P. Middleton, intended, and on account of the services rendered and as our father desired. So we desire the same to be paid to her.
“Signed,
“Mrs. Mattie George,
“Witness : Daniel H. Condit. “Dmighter.
“Harry B. Middleton,
“Son.
“Sworn and ‘scribed’ before me, a notary public of the State of New Jersey, this twenty-second day of February, 1902, all alterations, additions and corrections were made before signing.
■ “Golden Test,
“Notary Public.”

The uncontradicted proof is that, at the time this letter was obtained to be signed and sworn to by Mrs. George and Mr. Harry B. Middleton, they were unacquainted with the fact that they were, by the regulations of the society, themselves the beneficiaries entitled to be paid the benefit due on their father’s death, in case Miss Gandy’s nomination as beneficiary was, for any reason, ineffectual. It was represented to them that the letter and its verification were mere matters of form, and part of the process necessary and convenient to the payment of the money to Miss Gandy, in accordance with her unquestioned right. The transaction was wholly unsupported by the passing of any valuable consideration to the Middleton children. If considered as a gift to Miss Gandy, it was undoubtedly obtained to be executed by misleading statements made to the parties who signed the letter affidavit, and by the suppression 'of facts which ought to have been disclosed to them before they made such a gift.

It must be noted that this affidavit letter, which is claimed to have been a recognition of Miss Gandy’s claim, was written after Mr. Middleton’s death, and therefore at a time when, under the rules of the order, some definite person had become unchangeably entitled to the payment of the benefit. If Miss Gandy was entitled to it, she did not need to have her right assented to by the Middleton children. If they were entitled to it, they could not lawfully be deprived of that right by anything short of an actual assignment of their interest. Such an assignment must have been for some consideration of value, or, if by way of gift, they must have been informed of their rights, and knowingly have transferred them to Miss Gandy. Neither condition is shown in this affair. It is not pretended that any value passed, nor that there was any conscious gift. A gift by a donor who is ignorant of the fact that he is giving, cannot be sustained by any court.

Some correspondence between the executor of Mr. Middleton’s will and Mrs. George was offered in evidence, indicating that the executor was. desirous of obtaining Mrs. George to ratify and confirm the attempted designation of Miss Gandy as beneficiary. These letters were written after the death of Mr. Middleton, and after the right of the persons entitled to the benefit had been unchangeably fixed, unless altered by their own action. They were part of the effort to induce Mrs. George and Mr. Harry B. Middleton to recognize Miss Gandy’s claim, and to execute such papers as might satisfy and .protect the society in paying the fund to her. Nowhere in this cause is there any proof that, at the time of the doing of the acts by which' the Middleton children are alleged to have ratified Miss Gandy’s claim, there was any disclosure to them of the fact, (well known to the persons who obtained the alleged ratifications) that, under the rules of the society, the Middleton children were themselves the beneficiaries, in case Miss Gandy’s appointment; was inefficient, and that, in securing the benefit to her, they would be depriving themselves of their rights, under the rules of the society. ' ■

As to the first point above discussed, it must be held that Mr. Middleton, by becoming a member of the society, accepted its regulations as the terms of his contract with the order. He agreed that his children should, if his wife predeceased him, become his beneficiaries, unless he changed them in the mode prescribed by the rules, or the grand lodge exercised its option and waived observance of that mode. He did not change his beneficiaries in the mode prescribed by the regulations, and the grand lodge did not waive the observance of that mode. It follows that his attempted change is nugatory, and that his children are entitled to the fund, under the provisions of paragraph 6 of the regulations.

If, however, it be assumed that all the requirements of the society’s rules directing the mode of manifesting the member’s purpose to change his beneficiary had been precisely observed by Mr. Middleton, it remains to consider the second objection to Miss Gandy’s claim.

The regulation regarding the selection of beneficiaries is as follows:

"5. Benefioiwies.—Each member shall designate the person or persons to whom the benefit due at his death shall be paid, who shall in everji instance be one or more members of his family, or some one related to him by blood, or who shall be dependent upon him, or be his affianced wife.”

No member has any power to appoint a beneficiary outside of the classes fixed by the laws of the order. An attempt by a member to designate, as his beneficiary, a person who is not within the class prescribed by the regulations, must be treated as nugatory. Brition v. Royal Arcanum, 1 Dick. Ch. Rep. 105; affirmed on appeal, 2 Dick. Ch. Rep. 325. In that case the' limitation was ascribed to the definition of the objects of the-corporation in the statute under which it was organized. In this ease the society is a voluntary organization. Its declaration of objects and its constitution and regulations, however,, constitute the contract of its constituent members. The provisions of these articles just as effectively define and limit the extent of the scheme as a statute limits the authority of a corporation organized under it.

This limitation on the power of the member to select the-recipient of his benefit is one of the fundamental distinctions, between a beneficial society and a general life insurance. A member of a beneficial society can appoint his benefit to be paid only to a person within the class named in the regulations of the order, but one insured in a life insurance company may direct his policy to be paid to anyone whom he may select. The beneficial society contract does not contemplate general insurance, nor do the safeguards which the law provides for such business apply to protect members of such societies. They do-not have the equipment or capacity to conduct such business.

The payment of benefits to but a limited class is recognized as one of the expressly-declared objects of the society whose methods are now under examination. One object is stated to be

“to pledge the members to the payment of -a stipulated sum to such beneficiary as a deceased member may have designated, subject, however, to-such restrictions and upon such conditions as the laws of the order may prescribe.’’

(See statement of objects, page 5, paragraph 6, of the constitution, &c.)

The laws of the order require that each member, in selecting' his beneficiary, shall designate either a member of his family,, some one related to him by blood, some one who is dependent. upon him, or his affianced wife. (See constitution, paragraph 5.) If the person designated by the member is not within- any of these classes, it is not within the member’s power effectually to appoint his benefit to be payable to him. Payment to such outside persons is not within the scheme for which the society was formed, nor within the society’s agreement to pay benefits. The attempt to designate a person who is outside of these classes has no validity.

It'is also true that the characteristics of some one of these classes must actually be possessed by the person designated. The member cannot falsely declaré the person designated to be within the class, and thus impose upon the society the obligation to pay benefits outside of the plan upon which the society is founded. If he attempts to do this, his invalid appointment will be disregarded, and the benefit will be directed to be paid to that beneficiary to whom, under the regulations of the order, it would be due if there had been no designation. This was done in the case of Britton v. Royal Arcanum, ubi supra.

There is no pretence or claim in this case that Miss Gandy, whom Mr. Middleton has attempted to designate as his beneficiary in the place of his children, was a member of his family, or that she was related to him by blood, or that she was his affianced wife. No proof had been produced claiming that she occupied either of these relations to Mr. Middleton, nor has any argument been made in support of such a theory. The members of a man’s family are his wife and children. The phrase certainly does not, as usually understood, include the servants who may be casually employed in his kitchen.

The class within which it is attempted to place Miss Gandy, in order to support her claim that she was rightfully designated to receive from this society, is that she was a dependent upon Mr. Middleton. In his affidavit he declares that “it is solely because of the dependency of the said Lydia Gandy that he desires the change, in her favor, of his benefit certificate.” The undisputed evidence produced on this hearing shows that Miss Gandy was a cousin of Mr. Middleton’s wife, and that she was not related to him by blood. She was in his employment as a servant, doing his housework, under a contract with him for the payment of a certain weekly wage. She was engaged in this business for other persons before she came into Mr. Middleton’s employment, and while she was employed by him she was regularly paid her stipulated wages. There is no proof that her contract with him was in any way of a permanent character; that he had undertaken any relation to her, by adoption or by contract, by which she became dependent upon him, nor that, in actual fact, without express engagement, she had consented to take the position of a dependent upon Mr. Middleton, and had been accepted as such by him. The proof is clear, by her own testimony, that her association with him was that of employer and employe, upon a perfectly-defined contract for the payment of a certain sum for household services to be rendered by her. This compensation was regularly paid to her.

Such a relation is not that of a dependent. On the contrary, it is probably the most independent of all ordinary relations. So much so that, in the usual conduct of such business, the independence of employes, under such contracts, is a common ground of complaint on the part of employers. Miss Gandy was no more dependent upon Mr. Middleton than every servant employed to do housework is dependent upon her employer. It is true that she was dependent upon his living for the continuance of their relations. A thousand employes in a factory would be dependent upon their employer in this sense. The regulations obviously mean, by requiring that the beneficiary should be dependent on the member, that the beneficiary should, by contract or association, be dependent on the member for support. An employe under a contract for household services on weekly wages, with no permanent relation whatever, cannot be held to be such a dependent.

A decree will be advised in favor of Mrs. George and Harry B. Middleton. They are entitled to the fund.


author: Grey, V. C.

text:
    Richard G. Stevenson v. J. Willard Morgan.
    [Filed October 3d, 1902.]
    1. A motion to strike out the whole or part of a bill of complaint, under ' Rule 213, is in the nature of a demurrer.
    2. Where a general demurrer has been filed to a bill and has been overruled, a second demurrer, or a motion to strike out either the whole or parts of the same bill, cannot be entertained, unless special leave therefor be first obtained from the court.
    On bill for injunction, &c. On motion to strike out parts of 'bill, &c.
    The bill of complaint is filed by the owner of a farm and marl pits,’who alleges that the defendant (who presently owns a mill and dam located down stream from the complainant’s farm) has raised the height of his dam, and thus stopped the free flow of water, at its natural level, in an ancient watci; course, and, by backing, it has overflowed part of complainant’s farm and marl pits.
    The bill contains an allegation that a former owner of the farm forbade a former owner of the mill to interfere with the natural flow of the stream, and compelled him to.introduce steam into his factory, and that at no time thereafter was the stream raised above its natural flowage in front of complainant’s lands, until the defendant so raised it.
    The bill prays an injunction against the penning and damming back of the water, &c., and a special prayer asks that the defendant may be decreed to pay for the damages suffered by the complainant.
    To this bill a general demurrer was filed for want of equity, and because, it was alleged, the complainant had a full and adequate remedy at law, without naming any particular ground of demurrer, or specifying any defined part of the bill to be objectionable.
    The demurrer was a challenge of the complainant’s equity as exhibited by the whole bill. It was overruled, because, considering the bill as a whole, it set forth sufficient grounds for equitable relief.
    An appeal was taken, and the order of this court was affirmed on-the opinion here pronounced.
    .The complainant now moves to strike out two parts of the bill—first, the part which sets forth that a former owner of the farm had forbidden a former owner of the mill to interfere with the natural flow of the stream, &c.; second, that part of the prayer which asks a decree for damages.
    On this motion to strike out the counsel of the parties were heard.

      Mr. Charles V. D. Joline and Mr. David J. Pancoast, for the motion, for the defendant.

      Mr. Ilenry M. Snyder, contra, for the complainant.
   Grey, V. C.

The counsel for complainant insists that the present motion to strike out is equivalent to a demurrer; that a demurrer to the bill having been overruled, the defendant may not again demur to the same bill; that the terms of the statute prescribe that if a plea or answer be overruled, no other plea or demurrer shall be thereafter received, but in such case the defendant shall answer, &c. Chancery act, P. L. of 1902 p. 519 § 24-

The phrasing of Rule 213, under which the defendant moves to strike out portions of the bill, shows that the motion to strike out is, if made to a bill, intended to take the place of a demurrer. The purpose of the rule is to afford a speedy method of bringing the cause to an issue, without the delay attendant upon setting a demurrer down for hearing at term. It is obvious that it was not intended, in case an objection to a bill had been formally made by a demurrer, which had been set down for argumont, argued and overruled, that the same objection could after-wards be made to the same bill by a motion to strike out. Such a course of procedure would be a useless and vexing annoyance, and would, by repeated presentations of the same question, cause further delay, and thus defeat the very object of the rule.

A motion to strike out part of a bill of complaint, under Rule 213, must be held to be equivalent to a demurrer to the bill.

All of the books on pleading agree that, after a demurrer has been overruled, a second demurrer to the same bill will not be allowed. Story Eq. PI. § J¡.60j Mitf. Eq. PI. *217. This is the rule. Its propriety, indeed its necessity, in general practice is apparent.

In the present case the defendant, by framing a general demurrer against the whole bill, asked the court to pass upon the sufficiency of the pleading as a statement of grounds for equitable relief. The court held that the bill of complaint, taken as a whole, did state a case which entitled the complainant to relief. By the present notice to strike out, the defendant objects to particular parts of tlie same bill, as impertinent, and as asking relief which it is not within the power of this court to give.

Considering the notice to strike out as a second demurrer to the same bill, the situation here presented is the same as that exhibited in the case of Baker v. Mellish, 11 Ves. *71. In that case a defendant had, in the first place, demurred to the whole bill. His demurrer was overruled, because too general. He then demurred to specific parts of the bill. Lord Eldon declared that this course of procedure could not be sustained; that the proper course, where it was desired to demur to part of a bill, in a case where a general demurrer to the whole bill had been overruled, was to obtain special leave from the court to present the demurrer to the specific parts which the defendant wished to question. His lordship declared that it was necessary that the court should judge whether the demurrer was the same, and seemed to have been of opinion that, where specific objections to parts of a bill have not been considered, because the demurrer was to the whole bill, leave should be given to challenge them by a second demurrer confined to those parts. Afterwards leave to demur to a particular part of the bill was granted. Baker v. Mellish, 11 Ves. *76. In New York, although the statute of that state directs that if a demurrer is overruled no other demurrer shall be received, the statute does not prevent a second demurrer confined to a part of the bill, if special leave to file it be first obtained. 1 Hoffm. Oh. Pr. 216.

In the present case the defendant, after his general demurrer to the bill has been overruled, seeks, by notice, to strike out specific parts of the bill, without having obtained any leave of the court again to challenge the bill by demurrer. The complainant is not noticed into court for any other purpose than the motion to strike out, and insists that the order overruling the original demurrer precludes this second challenge of the bill.

In the absence of special leave thus to question the bill a second time, the motion to strike out cannot be entertained.

An order refusing the motion will be advised.


author: Stevenson, Y. C.

text:
    In the matter of the maintenance and ownership of the Newark plank road and bridges.
    [Filed September 8th, 1902.]
    1. The duty imposed on the court of chancery by P. L. of 1902 p. 566, to hear a petition for the apportionment between the counties interested of the expense of maintenance of a plank road running into two or more counties, after the charter of the plank road company had expired, is judicial and properly imposed on such court.
    2. Where, on the expiration of the charter of a plank road company, owning a road partly in each of two counties, it becomes necessary, under P. L. of 1902 p. 566, to apportion the expense of maintaining the road between such counties, and the citizens of one of the counties use the road in trafile which merely passes through the other county without any benefit thereto, and the remainder of the use is of equal benefit to each, the expense should be apportioned by ascertaining the proportion of such through trafile to the total use of the road, and charge such proportion of the expense, with one-half of the remainder, to the county engaged in such through traffic, and charge the other half of the remainder to the other county, though more of the road may be in one county than in the other.

      3. Where, on an application to apportion the expense of maintaining a plank road running into two counties after the charter of the company which built it had expired, under P. L. of 1902 p. 566, it appears that the use of the road was equally beneficial to each county, except that the citizens of one county also used it for traffic which merely passed through the other county, without any benefit thereto, it is incumbent on the latter county to show the proportion of such through traffic to the total use of the road, and the proportion of the expense to be charged therefor to the other county.
    On petition.
    The Newark Plank Road Company was incorporated by special act of the legislature, approved February 24th, 1849. Under the provisions of its charter and supplements the company constructed a continuous highway from the city of Newark to the Hudson river, in Jersey City. The portions of the road within the limits of Newark and of Jersey City were, in time, to a large extent, abandoned to those respective municipalities., The highway which remained in the control of the company, and which was operated by it as a toll road, consisted of the two bridges over the Passaic and Plackensack rivers, respectively, and a plank roadway laid across the tidal meadows through which those rivers flow. From the beginning of the planking at the Newark terminus to the end thereof at Jersey City the nature of the ground is such that this highway is of very little use to the adjacent territory through which it passes. The total length, including the bridges, is eleven thousand five hundred and 'one and six-tenths feet, less than two and a quarter miles. The Passaic bridge, including its approaches, is seven hundred and eighty-nine and two-tenths feet long. The Hackensack bridge, with its approaches, is one thousand six hundred and eighty feet long. This latter bridge lies wholly within the limits of Hudson county, the Passaic river being the boundary between the two counties. More than a fifth in length of this composite highway consists, therefore, of bridges over navigable rivers, each of which is necessarily provided with a draw. Of the entire highway, measuring from the centre of the Passaic river, five thousand eight hundred and ninety-eight and nine-tenths feet lie within Hudson county and two thousand nine hundred and two and seven-tenths feet lie within Essex county. A little more than a quarter in length thus belongs to Essex county and a little less than three-quarters to Hudson county. The land lying on each side of this highway and extending for a long distance therefrom has remained practically unoccupied, and shows at present little indications of being ever extensively applied to any useful purpose. Although the road has been open and in use as a great artery of commerce for many years, hardly any traffic is supplied from the land adjacent to the portion of the orginal highway under consideration in these proceedings. On account of the maintenance of guards and of the trolley road," which will be referred to hereafter, access from this adjacent territory to the plank road at present is practically excluded, excepting at a few points where special provision is made for such access. The evidence fairly establishes the fact that there is no intersecting public highway throughout the entire course of the plank road. There is one factory in Essex county, situate on the west bank of the Passaic river, which has the benefit of access to the plank road by a private roadway. There are three manufacturing establishments in Hudson county, between the two rivers, which use the plank road in a similar manner. There is also a public-house in Hudson county, on the east side of the Hackensack river, resorted to by fishermen, which may be said to be connected with the uplands by this plank road only. Near the same place access to the plank road is provided for "a number of people” who gather hay on the adjacent meadows. In all these instances where the plank road is used in connection with the adjacent land special means of passage over the canal, trolley road or roadway, guards are provided. The factories seem to have docks upon the rivers, and the evidence indicates that their use of the plank road is not extensive, their principal instrument of commerce being the rivers or tracks connecting with the steam railways.
    By virtue of comparatively recent legislation the Newark Plank Eoad Company became authorized to lay out and operate a horse railroad on the side and along the line of its road, so as not to obstruct the use of the plank track by vehicles. It appears that the whole width of the right of way of the company is forty-eight feet, of which only about eighteen feet is occupied by the plank track for ordinary vehicles. By shifting this plank portion in some places, a convenient strip was left on each side for a railway track of the usual steam railway construction. These tracks are built independently of the plank roadway, and occupy the roadway only at the draw of each bridge, o^ in one ■case, for a short distance further. When the tracks come to the river they are projected on practically independent trestles out into the stream as far as the draw, where they converge, so as to run across the draw parallel with each other and near together, like the trolley tracks of a city street. Beyond the draw the two tracks then diverge and resume-their former relative positions with the whole of the plank roadway and its guards between them unaffected by their presence or use. For some years past the plank road company has been running electric cars over its tracks, which connect with the tracks of the Newark .and Jersey City street railway systems, thus affording convenient transportation of passengers between all points in Newark and .all points in Jersey City, to the apparent equal advantage of each city. The electric cars are very heavy, but do not in any way wear or otherwise affect the plank trackway for ordinary vehicles, excepting while passing over the draw of each bridge.
    In the year 1900, in certain quo warranto proceedings, the ■charter of the Newark Plank Eoad Company was held to have expired by limitation, and that the company continued in existence only for the purposes of settling its affairs, disposing of its property, dividing its capital, &c., under section 53 of the present Corporation act. Grey v. Newark Plank Road Co., 36 Vr. SI; 8. C. on appeal, 36 Vr. 603.

    To endeavor to meet the complex situation of the Newark Plank Eoad Company and the Newark plank road brought about by this judicial action, the legislature passed two acts in 1901 and one'act in 1902. P. L. of 1901 ch. 133, 13k; P. L. of 1902 ch. 173. The laws passed in 1901 were approved upon the same day, March 22d, 1901. P. L. of 1901 p. 290. One of these laws (P. L. of 1901 ch. 13k) permits a plank road company, whose ■charter has expired, and which owns a railway operated as a •street railway, to come uhder the provisions of the Traction act, and operate its railway and continue its existence as if formed under that statute. It is assumed that the plank road company complied with this act forthwith, and the company claimed, in this proceeding, to be to all intents and purposes a railway corporation under the Traction act.
    The other act of 190Í (P. L. of 1901 ch. 135) seems to contemplate that a road and bridges situate as are these should be taken possession of and be operated by the respective counties in which they lie, the county line being the division. Any bridge over a navigable stream between two counties is to be taken jointly by the boards of the two counties, and is to be acquired and operated at joint expense. The act provides, further, that if a bridge shall be used by any street railway company, such company can, by agreement, “undertake a part of the expense of repairing, rebuilding and building said bridge,” and the board of freeholders and the railway company may, by agreement, fix the shares of such expense to be borne by the two parties, respectively. If no such agreement shall be made, either party is permitted “to apply, by petition, to the court of chancery, which court is given jurisdiction to hear the parties in a summary way” and to make an apportionment.
    Under the provisions of the last-mentioned statute, without considering any contribution from the plank road company, as a street railway company, the share of the expense of acquiring and maintaining this plank road and both these large bridges which would be thrown upon the county of Hudson would be much greater than that cast upon the county of Essex. The whole of the large bridge—that over the Hackensack river—half of the comparatively small bridge over the Passaic river and more than one-half of the plank roadway not on these bridges would have to be acquired and maintained at the expense of Hudson county, while it was claimed that the maintenance of this highway was far less beneficial to her than to her sister county.
    The act of 1902, it is fair to infer, was intended to relieve the county of Hudson from the hardship inflicted upon her by the former legislation. This act (P. L. of 1902 p. 566) provides that whenever the road" and bridge or bridges of any plank road company included within the terms of the former act (the act of 1901) “constitute a continuous highway in any two or more counties of this state,” it shall be the duty of the boards of freeholders of such counties
    “to acquire, maintain and operate such road and bridge or bridges at joint expense, and said boards may, by agreement,'divide the expense thereof between such counties in such proportion as they may deem just, notwithstanding the share of such expense agreed to be borne by. either of such counties may be more or less than the cost of acquiring, maintaining and operating the portion of such road or bridges located within the limits of such county.”
    The act further provides that if no such agreement shall be made, the boards of freeholders, or either of them, may “apply, by petition, to the court of chancery.” The same language is used to define the jurisdiction of the court to apportion the proportions of expenses to be borne by the two counties, as is above quoted from the act of 1901, prescribing the apportionment of expense to a street railway company.
    The present petition was filed, in terms> under the act of 1902. The plank road company and the North Hudson Street Railway Company, which latter is understood to be actually operating the electric cars, under lease or otherwise, were finally both brought into the proceedings and made parties thereto, in order that both the apportionment between the public authorities and the railway company under the act of 1901, and the altogether different apportionment between the two counties under the act of 1902, might be made at the same time. It was admitted that the parties interested in these two apportionments were unable to come to any agreement. After the testimony had been taken, by consent of all four parties, an order was made striking out the plank road company and. the North Hudson Street Railway Company as parties to the proceeding, and providing for any necessary amendment to confine the question to be determined by the court in this case strictly to the proportions of expense ■to be borne by the two counties, respectively.
    It is not necessary to ascertain what property rights, if any, the Newark Plank Road Company has in this roadway and bridges, or what the cost will be of acquiring or extinguishing such rights. Whatever the cost of acquiring, maintaining and operating this road and these bridges may be, all that is to be determined in this proceeding is the ratio in which this expense is to be divided between the two counties.

      Mr. Joseph L. Munn, for the board of chosen freeholders of the county of Essex, petitioners.

      Mr. John Griffin, for the board of chosen freeholders of Hudson county.

      Mr. Spencer Weart, for the Newark Plank Road Company.

      Mr. James B. Yredenburgh, for the North Hudson Street Railway Company.
   Stevenson, Y. C.

Although various hints, during the argument, were made In regard to constitutional questions which might be discussed in this proceeding, no argument has been made which was not addressed to the single question how this burden of expense should, in equity, be apportioned between the two contending counties. ■ This, therefore, is the question which I propose to consider and decide, after referring to a single preliminary matter too important to be passed in silence.

First. It was hinted, in the argument, that the apportionment of this expense is not a judicial duty which the legislature can cast upon the court of chancery. Without discussing this matter at length, I shall proceed upon the theory that the duty, under the act, which this court is called upon to perform is judicial, and not administrative or executive, in its nature, and that the extension of the judicial duties of the court to the subject-matter covered by this statute is “in harmony with its character,” and does not impair its “essential qualities.” Harris v. Vanderveer’s Executors, 6 C. E. Gr. 424, 427 (Chief-Justice Beasley). The following cases will abundantly illustrate the manner in which similar statutes, imposing similar duties upon the courts, have been passed by our legislature and recognized and enforced by our courts: Somerset v. Hunterdon, 23 Vr. 512 (Bridge act, 1894.); New York, &c., Railroad Co. v. Atlantic and Electric Railway Co., 10 Dick. Ch. Rep. 522 (Trolley Grossing act, 1895); Palmyra Township v. Pennsylvania Railroad Co., 17 Dick. Ch. Rep. 601 (Act for protection of railroad grade crossings, 1898); Board of Health v. Diamond Mills Paper Co., 18 Dick. Ch. Rep. 111 (Anti-pollution act, 1899).

In the case of Somerset v. Hunterdon, first cited above, the statute constituted a justice of the supreme court a special tribunal to decide as to the character of the new bridge, or the materials with which it should be constructed, where the two boards of chosen freeholders which were charged with the duty of building the bridge, and agreeing upon those matters, failed, in fact, to agree. In this instance the new judicial duty was placed upon the justice of the supreme court, not upon the supreme court, and the decision of the justice, as a special and inferior tribunal, became reviewable by the supreme court upon a writ of certiorari.

In each of the other three cases above cited the statute extends the jurisdiction of the court of chancery to a novel subject. The legislature has not undertaken to designate the chancellor as a special statutory tribunal, and thereby subject his decision to review in the supreme court by certiorari. In this present case, as in the last three cases above cited, the statute attempts to extend the jurisdiction of the court of chancery. That it is competent for the legislature to make such extensions cannot be disputed. The question in every such case is whether the new judicial duty cast upon the court of chancery, to use .the language of the late Chief-Justice Beasley, above cited, is “in harmony with its character and not a usurpation of the inherent powers of any other court.”

Vice-Chancellor Grey, in the case of Palmyra Township, above cited, finds, evidently as the characteristic of the statute before him essential to sustain its validity, that the jurisdiction which it conferred “upon this court accords with its modes of procedure and is consistent with its general equity powers.”

In view of the above-cited authorities, I shall not hesitate to endeavor to discharge the duties imposed upon the court of chaneery by this new statute, assuming that such duties (1) are judicial or “quasi judicial” in their character; that they are (2) in harmony with the nature of the court and its methods of procedure, and that (3) they have not hitherto been assigned to any other department of our government, and especially have not been committed exclusively to any other tribunal. Paul v. Gloucester, 21 Vr. 586, 611; Palmyra Township Case, supra.

Second. The first point to be ascertained is whether there is any principle, which has been recognized in New Jersey, governing the apportionment of the expense of the construction and maintenance of bridges among the communities which particularly enjoy the use of the bridge. It seems to be plain that the apportionment of this sort of expense between different towns or different counties has hitherto been made with reference to the relative advantages which the two municipalities derived from the improvement—with reference to the relative amount of use by each party. Of course, the principle is not capable of exact application. It may also be admitted that ordinarily a bridge connecting two municipalities is probably of equal advantage to each, and that equalitjr, in respect of ownership and the burdens of ownership, should be assumed to be just, in the absence of evidence to the'eontrarjr.

There are repeated instances in the early legislation of the state, when the care of bridges was placed upon the towns, or was gradually being transferred from the towns to the counties, in which the legislature, evidently recognizing inequality of advantage and use, apportioned the expense of constructing and maintaining a bridge between two municipalities unequally, placing upon one party a much larger share than was cast upon the other.

In -the act in relation to highways and bridges, passed in 1682, the construction and maintenance of highways and bridges were made the “charge of every respective person, town or township, to whom or where they are most serviceable, or do or shall most immediately belong or appertain.” Learn. & Spi. 251, 258.

In the general act relating to roads and highways, passed in 1716, during the period when the general policy was to make the towns care for all bridges, and, where a bridge connected two towns, to divide the expense thereof equally between such towns, the bridge over the Gloucester river was ordered to be repaired and maintained at the general charge of the county of Gloucester, because such burdens were considered "too heavy to be borne by the towns in which the said bridge is.” ' The same act made a similar disposition of the bridge over South river, between Amboy and Burlington, in the county of Middlesex. Bradf. 71j Kin. p. 69 §§ 16, 17; 1 Nev. 65.

In 1727 the legislature provided for the building and maintenance of a bridge over the Bound brook, between the counties of Middlesex and Somerset, "at the equal expense of the county of Middlesex aforesaid and the two upper precincts of the county of Somerset.” Kin. p. 299 § 16; 1 Nev. 168.

In 1730 the above-mentioned two towns in Somerest were relieved of their share of the burden of building and maintaining this bridge, and the entire expense was apportioned between the two counties, in the proportions of one-third part to Middlesex and two-thirds parts to Somerset. Kin. 257; 1 Nev. 198.

In 1741 the expense of maintaining bridges over the Passaic river, at different points between the townships of Essex and Morris on one side of the river, and the townships of Essex county on the other side, were apportioned between the Morris and Bergen townships and the whole county of Essex. 1 Nev. 275.

In 1760, in the revised general act in relation to roads and bridges, which placed the burden of maintaining bridges, in many of the larger counties, upon the counties themselves, and transferred that burden from their towns, the expense of 'maintaining the Bound brook bridge, above mentioned, which then had been erected, was imposed, as before, one-third upon the county of Middlesex and two-thirds upon the county of 'Somerset. 2 Nev. p. 861 § 86.

The same act (section 37) provided that thereafter the expense of repairing or rebuilding a bridge at Trenton should be apportioned between the county of Hunterdon and the township of Nottingham, in the county of Burlington, so as to impose two-thirds of such expense upon the county ’of Hunterdon and one-third thereof upon Nottingham township.

One of the most striking illustrations of the apportionment of expenses pertaining to bridges, according to use and benefit, is presented by the act of November 28th, 1760. Allin. L. p. 229. This statute provided for the construction and maintenance of various bridges in certain highways leading to the city of Philadelphia. The locality of each bridge, whether in Burlington or Gloucester county, was, to a large extent, disregarded. The burden of construction and maintenance was distributed according to a special scheme, which plainly recognized the equitable liability of a remote community to aid in maintaining a bridge which was useful to it, although beyond its territorial limits. Almost all the townships of Burlington county were made, by this act, to contribute to the maintenance of bridges in Gloucester county.

After the burden of erecting and maintaining bridges had been finally placed upon the counties, and the townships had been relieved therefrom, and especially after the counties had largely increased in population and wealth, the instances of apparent inequality of use and advantage from bridges with which we are dealing would naturally become extremely rare. The control which counties have over the erection of bridges would also tend to prevent the erection or maintenance of a bridge or part of a bridge by one county for the undue advantage of another county.

The situation presented by this Newark plank road, and particularly by its bridges, is similar to some of the situations dealt with by the legislature during the colonial period of the state, to which I have referred. The peculiar character of this situation is recognized in the statute upon which the proceedings in this court are based.

Leaving out of view the very slight local use of this plank road from the adjacent property, which, apparently, is not likely to increase very soon, this entire composite highway, including the plank road and both the bridges, discharges substantially the'same function as if it were a continuous bridge from the borders of Newark to the borders of Jersey City, spanning the rivers and meadow lands which lie between those points. That such is, to a very large extent, the nature of this highway was practically conceded in the argument. A bridge between these two great cities, apart from special circumstances, presumably would be for the equal- benefit of each place. Counsel for Hudson county offered evidence to show that the traffic over this highway was conducted very largely by citizens of Newark, in vehicles owned in Newark, and insisted that the expense of maintenance should be divided between the two counties, so far as it was to be borne by them, in proportion to the number of vehicles owned in’ each county and employed in conducting commerce, over the road. This principle he deduced from the proposition that Hudson and Essex should share the expense in question in proportion to the benefits which they severally received from the use of the road. But such a deduction, in my judgment, is wholly unwarranted. The large vehicles belonging to the Newark bakeries that travel over this plank road, ladened with bread which they deliver in Jersey City, are engaged in a commerce which, according to every sound principle of political economy and common sense, must be deemed beneficial to both cities. Commerce, to be carried on continuously, must be beneficial both .to the merchant and his customer. Crude notions to the contrary, at the present time, are, to a large extent, exploded. The argument urged by counsel that the distribution of bread in Jersey City from the Newark bakeries is injurious to the interests of Jersey City, because it competes with the manufacture of bread in that place, is fallacious. If the distribution of Newark bread to the citizens of Jersey City were not advantageous to those citizens, such trade would not be continued.

I know of no stronger reason which could impel a city, at its own expense, to extend a bridge to' a foreign shore than the certainty that over such bridge its citizens would be supplied with better or cheaper food than otherwise they would enjoy.

It is, however, very plainly established in this case that there is a large volume of traffic over the plank road between the city of Newark and the city of New York, in which Jersey City is to a very slight extent, if at all, interested. In respect of this traffic the highway discharges the function of a bridge between the city of Newark and the great city of New York. Vehicles, with their loads of manufactured goods, start from Newark and, after leaving the Jersey City end of the plank road, proceed directly to the ferries and then to customers or places of distribution in the city of New York. These vehicles use and wear the streets of Jersey City and enjoy police protection there, but do not seem, directly or indirectly, to bring any substantial trade or gain to the latter place. The course through Jersey City is short. Apart from the occasional trade connected with the transit of these vehicles and apart from the effect which they produce upon the business at the ferries, Jersey City is rather burdened than benefited by their transit through her territory. If, therefore, the proportion of the total traffic over the plank road which substantially belongs to commerce between Newark and New York can be ascertained, it seems to me that the practical problem presented in this case can be solved with approximate accuracy. The difficulty arises from the fact that the evidence does not show that a complete and satisfactory analysis of the traffic on this highway with reference to the point in question has ever been made. A partial analysis appears to have been made which throws some light upon the true character of the heaviest traffic—the traffic which wears the highway most-— the traffic conducted by heavy trucks and business wagons. So far as the plank road is used by light vehicles, which may be called private carriages, including bicycles and automobiles, not used in transporting goods, there is no evidence in the case to justify the inference that the use of the road for such travel is not equally beneficial to the two cities.

The use of the road by foot passengers is of the same character, but the evidence strongly indicates that such use is slight.

In regard to the transportation of passengers in the electric cars, if such travel were over the plank road, it would constitute a very large item of beneficial use, to be equally attributed to the two counties whatever portion of the joint burden might afterwards be assigned to the street railway company. But these electric ears are operated upon independent tracks, which do not in any way affect the plank roadway, or even these large bridges over the rivers, excepting at or very near the draws in these bridges. If the apportionment of the expense of maintaining these bridges is made under the act of 1901, or under any other statute, it is fair to suppose, from the nature of the case, that neither county will be put to much expense by reason of the passage of the electric cars over any part of this highway.

It is by no means certain that, if this highway were abandoned by the public, the street railway would not find -means to continue the operation of its cars over its tracks and across these two rivers by means of its own, and that Jersey City would not continue to enjoy the convenience of this railway service, without assuming, as the price thereof, the acquisition and maintenance of the highway.

I think, therefore, that the fact of the transportation of passengers, in electric cars, over these bridges is presumably for the equal benefit of the two counties, while a factor to be considered in the problem which we are endeavoring to solve, is not a very important factor. I think the same is, in a measure, true of the light use of the road by foot passengers and comparatively light use by what may be called private carriages. It is shown that, during three days and two nights, out of one thousand eight hundred and fifty-four vehicles, eighteen were automobiles, one hundred were carriages—i. e., vehicles carrying passengers— one hundred and twenty-four were bicycles, while one thousand six hundred and twelve were trucks for carrying freight. During the same period there were five hundred and eight foot passengers. It would seem that the main problem reduces itself to the analysis of the commerce in which these trucks are employed. The question is how much of it is commerce between Newark and New York, and how much between Newark and Jersey City. The proofs on this subject are unsatisfactory. We have only the results of a single partial investigation, made for a brief period. This evidence, however, was accepted by both sides of the controversy as complete. Mr. Jackson, the superintendent of the plank road company, gave, as the result of his investigations, that eight per cent, of the trucks belong to Jersey City, twelve per cent, to New York City and eighty per cent, to Newark. This intelligent witness, however, stated, first, that he had no means of knowing how much of the traffic indicated by the eighty per cent, of Newark vehicles was between Newark and Jersey City, and how much of it was between Newark and New York. He indicated, however, an opinion, founded, in part, upon observation, that a substantial portion of this traffic was between Newark and New York, only slightly and transiently affecting Jersey City. The witness showed that a considerable express business was carried on in wagons over this plank road between Newark and New York. There are, also, a large number of factories in Newark which convey their products, by trucks, over this highway to their places of distribution in the city of New York.

In regard to the twelve per cent, of the trucks which belong in New York, it is safe to suppose that very few, if any, of these vehicles are employed in any commerce between Newark and Jersey City. When we undertaké to calculate what portion of the eighty, per cent, of Newark trucks are employed in commerce between Newark and New York, we are without any<exaet measure or guide. That a very considerable proportion of the freight hauled from Newark factories, in Newark trucks, is transported immediately to New York, seems to be a fair inference from the testimony and from plain facts of which this court can take judicial cognizance. I think, however, that, with the evidence on this subject incomplete, although additional evidence seems to have been available, great caution should be observed in adopting any uncertain conclusion in favor of the county of Hudson. Commerce between two large cities like Newark and Jersey City may well be presumed to be equally beneficial to those cities, except so far as the contrary is proved.

If we take out twelve per cent, of this traffic by trucks, eighty-eight per cent, remains to be assigned to commerce between Newark and Jersey City and commerce between Newark and New York. The proportions of the burden to be divided, so far as they are ascertained by this single definite factor, would be forty-four per cent, to Hudson county and fifty-six per cent, to Essex county. But this calculation is manifestly incomplete. It would seem that the corrections are to be applied by a process of mind, which, to some extent, partakes of the nature of guessing. To deal with these indeterminate factors separately is not, in my opinion, the best method. Probably no two" minds would give any of them exactly the same effect in figures; perhaps no two minds would independently reach precisely the same result in figures in regard to the whole problem to be solved.

Allowing the local use of the road its full force as tending to make the burden of Hudson county greater than that to be borne by Essex county, allowing, also, that the use of the highway by foot passengers and by the electric cars, bicycles, automobiles and other vehicles transporting passengers is equally beneficial to the two counties, and that therefore the traffic by means of trucks is not to be considered the only useful thing which is to be paid for—with these considerations and the presumption in favor of equality in view,-1 have reached the conclusion that this entire highway may be regarded as practically a bridge between Newark and New York City to the extent of something between twenty and thirty per cent, of its beneficial use by the public. Applying the best judgment which I can bring to bear upon the problem as a whole, with its definite and indefinite elements, I think the expenses mentioned in the petition may be divided between the two counties so as to impose five-eighths thereof upon the county of Essex and three-eighths upon the county of Hudson.

If the above result is, in fact, a hardship upon the county of Hudson, it must be, I feel sure, because a larger proportion of the traffic carried on in Newark trucks than I have allowed for is between Newark and New York City and only transiently affects Jersey City. But the definite proof on that subject, which the testimony showed was obtainable, was not produced, although, while there was still abundant opportunity to present such evidence, the views of the court in regard to its importance were most plainly expressed. In dealing, therefore, with this important factor in the problem to be solved, well-settled rules of evidence, I think, require that, if any mistake is probable, the mistake should not be to the injury of Essex county.