Max Salinger, for appellant. Daniel J. Murray, for respondent.

SWAYZE, J. The demand for security for costs was not made in the manner and at the time required by the statute, and this point was very properly not pressed by the appellant's counsel.

The claim that the placing of two orders for cigars in Bayonne with the plaintiff's salesman was such a transaction of business in this state as made it necessary for the plaintiff to file a certificate with the Secretary of State under section 97 of the corporation act (P. L. 1896, p. 307) cannot be sustained. Transaction of business by a foreign corporation within this section means the general prosecution of the ordinary business of the corporation, and this is not the necessary inference from isolated sales. D. & H. Canal Co. v. Mahlenbrock, 63 N. J. Law, 281, 43 Atl. 978, 45 L. R. A. 538. In that case the Court of Errors and Appeals cited with approval cases in the New York Supreme Court and a passage from Thompson on Corporations to that effect.

Whether the sales in a particular case are made under such circumstances as to require the inference that the foreign corporation is engaged in the general prosecution of its ordinary business is a question of fact, to be decided by the trial court, and its finding is not open to review where there is any evidence to sustain it. The evidence in this case leaves it doubtful whether the sales were consummated in New Jersey or at the office of the plaintiff, which seems to have been in New York. The trial court may have found the latter to be the fact. If so, its conclusion that the plaintiff was not "within the limitation of the statute" was correct (Slaytor-Jennings Co. v. Specialty Paper Box Co., 69 N. J. Law, 214, 54 Atl. 247); but even if the sales were consummated in New Jersey, they may have been made under such circumstances that they did not amount to a transaction of business within the state under the rule established in the cases cited.

The plaintiff is entitled to judgment, which may be entered in this court.

(75 N. J. L. 395) SHALLCROSS ▼. WEST JERSEY & S. R. CO. et al.

(Supreme Court of New Jersey. Nov. 11, 1907.) PLEADING ANSWER-SEVERAL DEFENSES.

By virtue of the statute permitting the filing of several pleas, a defendant may to a count in trespass plead not guilty and also a justification, and the plea of a justification is not evidence to justify a finding for the plaintiff on the plea of not guilty.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, § 189.]

(Syllabus by the Court.)

Action by Paul Shallcross against the West Jersey & Seashore Railroad Company and others. Nonsuit as to the Philadelphia &

Camden Ferry Company, and verdict against the other defendants. Rule to show cause made absolute.

Argued June term, 1907, before GARRISON and SWAYZE, JJ.

Harvey F. Carr and Wilson, Carr & Stackhouse, for plaintiff. Thomas L. Gaskill, for defendants.

SWAYZE, J. Four corporations were made defendants in this suit. At the trial the plaintiff suffered a voluntary nonsuit as to the Philadelphia & Camden Ferry Company and a verdict was rendered against the West Jersey & Seashore Railroad Company, the Pennsylvania Railroad Company, and the United New Jersey Railroad & Canal Company. We fail to find any evidence connecting the last-named company with the injury of which the plaintiff complains, and the only ground on which the motion to nonsuit as to that company was resisted was its plea of justification. But this plea was accompanied by a plea of not guilty. Although these pleas are inconsistent, it is permissible to file inconsistent pleas since the statute of 4 Anne, which appears in a modified form in our practice act as section 116 (P. L. 1903, p. 570). Parks v. McClellan, 44 N. J. Law, 552. Tidd cites a case where in trespass the defendant pleaded not guilty and several pleas in justification. 1 Tidd's Practice, 659.

Manifestly the permissibility of such inconsistent pleas prevents the plea of justification from being evidence in the plaintiff's favor on the plea of not guilty, even if pleadings are to be treated as admissions of the parties, which may well be doubted. Wigmore's Edition of Greenleaf, § 186.

The effect of a bill of particulars (Lee v. Heath, 61 N. J. Law, 250, 39 Atl. 729) rests on a different ground. It is an admission of a party, and not a mere pleading by an attorney.

The trial judge charged the jury that, “if they believed from the testimony that the act was wanton or malicious on the part of the agents of the company, they would be justified in adding to the compensatory damages such an additional amount as would be a lesson to the defendants and prevent a repetition of such conduct-what the law calls 'vindictive damages' or 'smart money."" He added an expression of his own opinion that the evidence hardly seemed to show malicious conduct on the part of the officers who arrested the plaintiff, but said that, while that was the way the testimony impressed him, yet, if the jury thought differently, they might award punitive damages. The natural inference from this charge was that vindictive damages might be given against the companies if the officers, their employés, acted maliciously. This is not the rule. The defendants cannot be charged with punitive damages for the illegal, wanton, or oppressive conduct of their servants, unless they participated in the wrongful act

James M. Trimble, for plaintiff. Leo Stein, for defendant.

PER CURIAM. We think the evidence presented a case for the jury, and the only question to be determined is whether the damages are so excessive that we should be justified in disturbing their verdict. The decedent was a married woman 55 years of age. The verdict was for $750. This is less than $1 a week for her expectancy of life, and, allowing for the difference between the value of a capital sum presently paid and a sum to be received in weekly installments, we cannot say that the sum awarded exceeds the probable pecuniary value of her services to her next of kin. The rule is discharged.

SAYRE v. CITY OF ORANGE. (Supreme Court of New Jersey. Nov. 11, 1907.) 1. MUNICIPAL CORPORATIONS-ACTS OF OFFICERS RATIFICATION.

The act of a city's counsel in instituting proceedings to condemn land for a water main was adopted and ratified by the city resisting an application for certiorari to review such proceedings.

2. EMINENT DOMAIN-NECESSITY.

That by carrying a city water pipe 200 feet along a road it could be connected with a main without crossing private property did not show want of necessity for condemning a right of way for such pipe over petitioner's property. [Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 115, 147, 148.] 3. SAME "NECESSARY."

The word "necessary," in acts involving the right of eminent domain, does not mean “absolutely necessary or indispensable," but "reasonably necessary," to secure the end in view. [Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 115, 147, 148.]

Certiorari by Marcus Sayre against the city of Orange to review proceedings by the city to condemn land for a water main. Writ denied.

Argued June term, 1907, before HENDRICKSON, PITNEY, and TRENCHARD,

JJ.

Robert R. Howard, for the motion. William A. Lord, opposed.

If

PER CURIAM. The writ is denied. there was any doubt of the authority of the city counsel to institute condemnation proceedings, the city has adopted his act by resisting the present application.

We cannot accede to the suggestion that it is not necessary for the city to carry its pipe through Sayre's property because, by continuing the water main 200 feet along Ridgewood Road, it could be connected with the water main along Railroad avenue without crossing private property. It is settled by the decision of the Court of Errors and Appeals that the word "necessary," in cases involving the right of eminent domain, does not mean absolutely necessary or indispensable. It is sufficient if the right proposed to be ac

quired is reasonably necessary to secure the end in view. Olmsted v. Proprietors of Morris Aqueduct, 47 N. J. Law, 311.

We think the taking proposed by the city of Orange in the present case is within that ruling.

(73 N. J. E. 220)

KYTE v. KYTE et al. (Court of Chancery of New Jersey. Sept. 7, 1907.)

WILLS-CONSTRUCTION-DEVISE TO WIFE FOR HERSELF AND CHILDREN.

A will devising unto testator's wife "for herself and all her children" all testator's real estate, the wife does not take all the property with power to sell and convey free of any interest of her children, but she and they take as tenants in common.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 1452-1458.]

Suit by Jane Josephine Kyte against George D. Kyte and others for specific performance. Dismissed.

C. M. Dolliver and Reed & Codington, for complainant. Codington & Swackhamer, for defendants.

BERGEN, V. C. George Kyte died seised of real estate, leaving a last will and testament in which he devised his land as follows: "Second: I gave and devise unto my wife Jane Josephine Kyte, for herself and her children any and all real estate that I may die seized of." The wife and the defendant James F. Devine entered into a written agreement for the conveyance and purchase of a portion of the testator's real estate, which contract the defendant Devine refuses to fulfill, offering as an excuse that the wife was not under the clause of her husband's will above set out empowered to convey a marketable title according to the terms of her contract. The bill filed in this cause seeks the specific performance of the contract for sale and purchase; and, in order to ascertain whether the complainant is entitled to the decree she seeks, it becomes necessary to construe the testator's will, of which the clause above recited is the only pertinent part.

The insistment of the complainant is that by the terms of the devise referred to she takes an estate in fee simple with the power to sell and convey the land free and discharged of any interest of her children therein. It appears that at the time the will was executed, and at the death of the testator, the wife had children living, and, if the gift had been to her and her children, it would have fallen directly within the ruling laid down in Gordon v. Jackson, 58 N. J. Eq. 166-169, 43 Atl. 98, but it is sought to distinguish the present case from that because the gift in the first instance is to the wife, "for herself and her children," indicating, as it was urged, no gift to the children. The argument does not appeal to me with any force. The clear intention of the testator was to give to his widow and children, for their joint

benefit, all of the real estate of which he died seised, and to accept the view urged by the complainant would necessarily deprive her children of all beneficial interest, a situation manifestly not within the contemplation of the testator. The plain effect of the words used is to vest a concurrent interest in the wife and her children, without the slightest Indication appearing in the will of an intent, on the part of the testator, to overthrow the reasonable presumption arising from the language used.

The conclusion which I have reached is that the wife and her children take, under this will, all of the real estate of the testator as tenants in common, and that the title tendered by the complainant which she seeks to compel the defendant to accept is not the title which she contracted to convey, and therefore the bill of complaint must be dismissed, with costs.

(76 N. J. L. 87)

STATE v. SNYDER. (Supreme Court of New Jersey. Nov. 11, 1907.) 1. GAME-GAME WARDENS-AUTHORITY TO AB

BEST.

The Legislature by the act to establish a uniform procedure for the enforcement of laws relating to fish, game, and birds (P. L 1897, p. 109) has authorized the fish and game wardens to prosecute for penalties and to arrest persons against whom a warrant has been issued. Held, that a warden may make the arrest even in a case in which he himself is the prosecutor, and that although he is entitled to receive onethird of the penalty.

2. SAME-DEER-CLOSE SEASON.

The amendment of 1906 of the game law of 1903 (P. L. 1906, p. 699) is to be read as an independent enactment, and extends the close season for deer for three years from 1906.

(Syllabus by the Court.)

Andrew W. Snyder was convicted of a violation of the game law, and brings certiorari. Affirmed.

Argued June term, 1907, before GARRISON and SWAYZE, JJ.

Joseph F. Smith, for prosecutor. Nelson B. Gaskill, Asst. Atty. Gen., for the State.

SWAYZE, J. This is a prosecution for a penalty under the game laws for unlawfully attempting to take, kill, injure, and destroy a wild deer. The prosecutor is one of the fish and game wardens of the state.

The first objection is that the prosecutor was himself the officer who served the warrant and arrested the defendant, and it is urged that this was improper because he was interested to the extent of one-third of the penalty.

It is not necessarily fatal to a proceeding that the officer who serves the writ is himself a party. Bennett v. Fuller, 4 Johns. (N. Y.) 486; Tuttle v. Hunt, 2 Cow. (N. Y.) 436; Putnam v. Man, 3 Wend. (N. Y.) 202, 20 Am. Dec. 686. It is an irregularity only (Parmalee v. Loomis, 24 Mich. 242), or the subject of a plea in abatement (Shaw v. Baldwin, 33 Vt.

447). In Massachusetts it has been held that the process was not rendered void in such a case, but, if it is questioned upon motion or a plea in abatement, the proceedings will be set aside or the defendant may be discharged; but, if the defendant appears and answers, it is not error in the proceedings that a service of process has been served by an officer related to one of the parties. Gage v. Graffan, 11 Mass. 181. There is, we think, no reason why the Legislature may not authorize service of process by one who is himself entitled to a share of the penalty, and the statute indicates that such was the legislative intent. The warrant may be issued to one of the wardens (P. L. 1897, p. 109, § 3), and he is one of the class of persons who alone are authorized to institute the proceedings (P. L. 1897, p. 113, § 16). If this were not so, the defendant could not now raise the objection for he has pleaded to the merits nolo contendere, which is equivalent to a plea of guilty.

The real question in the case is the proper construction of the act of June 19, 1906 (P. L. 1906, p. 699). That act purports to be an amendment of section 1 of the act of April 5, 1904 (P. L. 1904, p. 406), which itself is an amendment of the revised game law of 1903 (P. L. 1903, p. 526). Section 16 of the act of 1903 established a close season for deer for two years after the passage of the act. The only object of the amendment of this section in the act of 1904 seems to have been to exempt from its operation deer legally killed in other states. The amendment of 1906 on its face purports to amend section 1 of the act of 1904, but in reciting it omits to indicate that it was section 16 of the act of 1903. The mistake is obvious, and we think may fairly be disregarded. The language of the amended section follows that of the act of 1903, but substitutes the word "three" for "two," so that it reads "it shall be unlawful for three years after the passage of this act for any person," etc. The other changes it is not now important to consider.

The act of 1903 was approved April 14, 1903. The act of 1906 was approved June 19, 1906.

The argument of the defendant is that the amendment of 1906 must be read as a part of the original act, and that the three years provided by the amendment therefore expired April 14, 1906. We do not question the general rule of construction of amendatory acts for which the defendant contends, but it is a rule of construction only. The fact that in the present case it leads to an absurd result is sufficient to show that it is not applicable. The Legislature could never have intended in 1906 to provide for a change in the close season for deer which would be wholly without effect; yet that would be the result if in June, 1906, the close season was made to extend only to the preceding April. It is quite evident that the Legislature meant the

close season to extend three years from the date of the act of 1906, and in this respect the act of 1906 is to be read as an independent enactment.

The conviction must be affirmed, with costs

(75 N. J. L. 415)

BILLINGTON v. MILLER. (Supreme Court of New Jersey. Nov. 11, 1907.) 1. MUNICIPAL CORPORATIONS-STREETS-USEROLLER SKATING.

Where a city ordinance prohibiting skating on a portion of a city street only related to roller skating as a sport, it was not objectionable as infringing the right of the public to travel on the street on roller skates.

2. SAME-USE OF STREET FOR Sport-Regula

TION.

If the public is entitled to use the streets of a city for the purpose of mere sport, such right is subject to reasonable regulation by the city.

3. SAME-OBSTRUCTION OF TRAVEL.

Where a portion of a city street on which roller skating was prohibited by ordinance had been so given up to the sport as to constitute a serious injury to abutting property owners, if it did not unreasonably obstruct public traffic on the street, the ordinance was neither unreasonable nor arbitrary.

Proceeding by Hugh Billington against Robert Miller, acting judge, to review petitioner's conviction for violating a city ordinance prohibiting roller skating on a portion of a street. Affirmed.

Argued June term, 1907, before GARRISON and SWAYZE, JJ.

John J. Mulvaney, for prosecutor. Gilbert Collins, George S. Hobart, and George W. Hendrickson (C. L. Corbin, on the brief), for defendant.

SWAYZE, J. The reasons in this case attack only the validity of the ordinance of Jersey City prohibiting roller skating on a portion of Bergen avenue, and the arguments were directed to that question only. We need not, therefore, consider whether the complaint and the evidence sufficed to bring the case within the ordinance.

We think the language of the ordinance makes it clear that it was only the sport of roller skating that it was intended to reach, and not mere travel upon roller skates, as the argument of counsel assumed. Whether there is a right to use the public streets of a city for the purpose of mere sport is a question which has never been decided in this state, nor is it necessary now to determine it. If there be such a right, it must be subject to regulation by the city authorities, and as long as the restrictions imposed upon it are reasonable, for a public purpose, and not arbitrary, the courts ought not to interfere. Richmond, F. & P. R. R. Co. v. Richmond, 96 U. S. 521, 24 L. Ed. 734; Erb v. Morasch, 177 U. S. 584, 20 Sup. Ct. 819, 44 L. Ed. 897; Ivins v. Trenton, 68 N. J. Law, 501, 53 Atl. 202, affirmed 69 N. J. Law. 451, 55 Atl. 1132.

The evidence shows that the portion of Bergen avenue on which roller skating was prohibited was so given up to the sport as to constitute a serious injury to abutting property owners, if it did not, indeed, unreasonably obstruct the public traffic on the street. These abutting property owners were entitled to protection as the part of the public most immediately concerned, and it was quite as much to the common interest of all citizens to secure that protection as to secure an unimpeded passage for vehicles.

We fail to find anything unreasonable or arbitrary in the ordinance, and the conviction must be affirmed, with costs.

(75 N. J. L. 407) HARTSHORNE v. BOROUGH OF AVONBY-THE-SEA.

(Supreme Court of New Jersey. Nov. 11, 1907.) 1. TAXATION-DEDUCTIONS.

Under section 10 of the tax act of 1903 (P. L. 1903, p. 400), a mortgage held by a building and loan association cannot be deducted from the assessed value of real estate.

2. SAME-UNIFORMITY OF TAXATION-BUILDING ASSOCIATIONS.

The act of March 20, 1874 (P. L. 1874, p. 388), as to the taxation of the capital stock of building and loan associations in Monmouth County, was superseded by the constitutional provision of 1875, that required property to be assessed under general laws and by uniform rules.

3. SAME-CONSTITUTIONAL LAW.

The act of March 28, 1904 (P. L. 1904, p. 201), which purports to repeal so much of the tax act of 1903 as repeals the act of March 20, 1874 (P. L. 1874, p. 388), is unconstitutional. (Syllabus by the Court.)

Certiorari by Acton C. Hartshorne against the borough of Avon-by-the-Sea to review an assessment. Assessment affirmed.

Argued June term, 1907, before GARRISON and SWAYZE, JJ.

Acton C. Hartshorne (E. W. Arrowsmith, of counsel), for plaintiff. Frank Durand and G. W. W. Porter, for defendants.

SWAYZE, J. The prosecutor claimed a deduction from the value of real estate for the amount of a certain mortgage held by the Freehold Mutual Loan Association. This mortgage was given to secure the payment of interest on the principal of the loan and the monthly installments to be paid on shares of stock until the value of the shares equaled the amount of the loan, which was then to be satisfied. It did not provide otherwise for the payment of the principal of the loan.

The revised tax act of 1903 expressly enacts that no deduction from the assessed value of real property shall be made by the assessor on account of any mortgage debt. It is suggested that this provision does not apply to the present case, because of an exception of mortgages which are an investment of funds not subject to taxation. this contention there are two answers:

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