fendant, was for more than was actually due him from the contractor, is to admit he has no cause of action, for, says Chief Justice Beasley at another point in the same opinion quoted from above, "If the workman or materialman claim, therefore, more than has in fact been earned by him, such exaggeration is, I think, fatal to his right to use the statutory procedure against the owner." Nor do we think the owner is bound by the fact that a judgment has been recovered against the contractor by the claimant. The recovery of such a judgment is evidential of the amount due on his claim, and, without other proof, may be conclusive. But it does not prevent the owner from showing at the trial the truth to be that the claim is excessive, and the judgment thereon is likewise so, or that it is fraudulent. The owner is in a position where other workmen and materialmen may claim that a duty is cast upon him to see that the claim made is just, because, if unjust, they may have rights in the fund. He may not be compelled to contest, or liable to other claimants who may be subsequent in priority of claim, if he fail to do so that is not decided -but he certainly has the right to contest the claim made in any notice similar to the notice of the plaintiff in this case; and if it appear by the proof, uncontroverted, or the jury so find, that the claim, as made, is excessive, to the knowledge of the claimant, the claimant cannot recover anything, and the owner is entitled to a verdict and judgment thereon in his favor. The principle controlling in such a case as this is the same as that declared by the Court of Errors and Appeals to apply where a notice to hold back is given to a city by a claimant against a contractor upon work done under a public contract. Camden Ironworks V. City of Camden, 52 Atl. 477.

The demurrer will be overruled, with costs, but leave is given to the plaintiff to plead issuably within 20 days after entry of the rule overruling his demurrer.

ENGLISH v. RAINEAR et al. (Court of Chancery of New Jersey. June 2,

MORTGAGOR AND

1903.)

MORTGAGEE-RELATIONCONVEYANCE BY MORTGAGEE-EFFECT-RIGHTS OF PARTIES.

1. R. held a mortgage on a farm, and had sued to foreclose. Complainant induced a third person, to whom he owed money, to buy in the property at the sale, under an arrangement whereby the third person was to execute a new mortgage of the land to R. At the same time complainant entered into a written contract with the third person whereby the latter was to convey to complainant on repayment of the amount, together with the amount which complainant owed him, etc.; complainant to assume the new mortgage. Complainant was to retain possession of the farm, etc. Held, that the relation between complainant and the third person was that of mortgagor and mortgagee.

2. Complainant having failed to make the

payments at the time stipulated, by an arrangement between him, R., and the third person, the latter conveyed the farm to R., who knew all the circumstances. Held, that R. took subject to the rights of complainant against the third person.

3. R. afterwards conveyed the premises to his brother. Complainant was in open and notorious possession at the time. Held, that the brother was put on inquiry as to complainant's rights, and took subject thereto.

Bill to compel specific performance, brought by Abram English against Schuyler Rainear and another. Decree rendered.

Peter Backes, for complainant. R. S. Gaskill, for defendant Schuyler Rainear. Howard Flanders, for defendant Samuel Rainear.

REED, V. C. This is a suit to compel Schuyler Rainear and Samuel Rainear to convey certain property to Abram English upon the payment by Mr. English of a certain sum due by Mr. English to one Martin C. Ribsam. The facts are substantially these: Schuyler Rainear held a mortgage upon a farm which was the old homestead of Mr. English's family. He began a suit to foreclose his mortgage. Abram English was anxious to save the farm. He had had some dealings with Martin C. Ribsam, and owed Ribsam about $100. He applied to Mr. Ribsam to help him keep the farm. Mr. Ribsam consented to do so if Mr. Rainear could be persuaded to take a new mortgage for $2,000 upon the farm. Messrs. Ribsam and English saw Mr. Rainear, who consented, if his interest was paid up, and Mr. Ribsam would take the title to the farm, to leave $2,000 upon it, to be secured by bond and mortgage thereon, to be executed by Mr. Ribsam. Under this arrangement, Mr. Ribsam bought the farm at the sale under the decree made in Rainear's foreclosure suit, took the deed from the sheriff, paid the interest due upon the mortgage and the costs of the suit, and executed a mortgage to Schuyler Rainear. His payments, together with the amount English owed him, and the $2,000 mortgage made to Rainear, amounted, altogether, as I understand the testimony, to $2,845. At the time Mr. Ribsam took the deed, he entered into a written agreement with Mr. English. This agreement was dated June 21, 1899. By the terms of this agreement, Ribsam covenanted to sell the farm to Abram English, upon demand made before the 1st day of January, 1903, for $2,845, to be paid by the assumption of the mortgage debt of $2,000 made to Rainear, and the balance in cash, and upon the payment of all moneys which Ribsam may have expended in improvements, or for interest and taxes and insurance premiums, together with interest upon the money paid for improvements in carrying on farm operations. English was to have possession of the farm, and conduct it, paying all interest upon the mortgage and all taxes against the property. English was to pay $425 on account of the purchase money on or before

farm

The

the 1st day of January, 1902, and was to pay the balance on or before the 1st day of January, 1903. English covenanted to make these payments, and it was agreed that if default was made in any payment of interest, taxes, or on account of the purchase price, and said payment should be in default for 30 days, Ribsam could rescind the agreement and enter upon the premises, and English was to forfeit all payments made. Mr. English went into possession of the upon the execution of this agreement. first year, Mr. Ribsam says, English paid the taxes and interest, but was behind in his account, but Mr. Ribsam gave him a chance for another year. At the end of the second year he was behind in his interest and taxes. Mr. Ribsam says he told English at that time that, if Mr. Rainear was satisfied, he (Ribsam) was willing to try him another year. A few days thereafter Mr. Rainear demanded his interest due upon the mortgage; and Mr. Ribsam says he then told English that, if his old neighbor and friend (meaning Rainear) would not stand by him better than that, he did not see why he (Ribsam), a stranger, should stand by him any better. He says he told English to go back and tell Rainear that he (Ribsam) would sell the place, and whatever profit there was, he would divide. Ribsam paid the interest to Rainear on January 9, 1902. By an arrangement between English, Rainear, and Ribsam, the latter conveyed the property on January 13, 1902, to Rainear, for the sum of $2,750. This amount represented what English then owed Ribsam, together with the $2,000 secured by the Rainear mortgage.

It is apparent from the testimony that Mr. Ribsam bought in this property at the foreclosure sale as trustee for Mr. English. It is equally apparent that he took the title in his own name to secure himself the amount which he had advanced to Mr. English. Ribsam held the title as mortgagee, and Mr. English went into possession as mortgagor. The agreement between Ribsam and English contained a covenant by English, as already remarked, to pay the amount secured by the deed. Upon the face of the agreement, therefore, there existed a debt, for the security of which, title was held by Ribsam. This displayed that the relation between Ribsam and English was that of mortgagee and mortgagor. Now, Schuyler Rainear knew the circumstances which led to the purchase of the property by Ribsam at the foreclosure sale, and I have no doubt that he read the agreement, which was for a time in his possession; nor do I doubt that at the time of the sale to him by Ribsam, and at other times, he led both Ribsam and English to suppose that he was helping English, and that English would have the right to redeem. In my judgment, he took the property subject to all the rights which English held against Ribsam. But the right of an

other party was intervened. On May 30, 1902, Schuyler Rainear sold, of the 116.48 acres which he had bought of Ribsam, 103.81 acres to his brother, Samuel Rainear, for $3,633. Samuel Rainear on September 23, 1902, began an action of ejectment against English to recover possession of this tract. The bill charges that he bought with notice of the agreement between Ribsam and English. The defendant seeks to enjoin this action of ejectment, and prays that, upon payment by English of the amount due under agreement with Ribsam, the two Rainears may be ordered to reconvey the property to him. It is claimed by counsel of Samuel Rainear that he stands in the attitude of a bona fide purchaser for value, and, as such, is entitled to hold the land he bought, free from any equity which may have existed against Ribsam or Schuyler Rainear. There is one fact, however, which destroys the force of this insistence, and that fact is that English was in open and notorious possession of the farm at the time Samuel Rainear made his purchase. So far as appears, he made no inquiries of English respecting his interest in the premises. The title not having come through English, Samuel Rainear is chargeable with all the information which he would have obtained had he made such inquiries. Stew. Dig. p. 902.

I shall advise a decree permitting English to redeem upon payment of the amount which Schuyler Rainear paid to Ribsam, which was as, I understand it, the amount which English owed Ribsam, together with the interest, within 60 days after decree is signed, and that, upon the failure of English to make such payment within that time, the bill shall be dismissed.

(69 N. J. L. 548) UNGER v. INHABITANTS OF FANWOOD TP. (Supreme Court of New Jersey. June 8, 1903.) CERTIORARI-ORDINANCE-VALIDITY OF-VIOLATION-ACTION FOR PENALTY-JURISDICTION OF JUSTICE-RIGHT TO JURY TRIAL.

1. The validity of an ordinance affecting the general public cannot be challenged by certiorari unless the prosecutor shows some injury peculiar to himself.

2. In a prosecution for violating an ordinance, certiorari will not be allowed before final decision in the court below. It is not within the exception to the rule stated in Hoxsey v. Paterson, 39 N. J. Law, 489.

3. When authority is given to prosecute a suit before a justice of the peace to recover a penalty for violating an ordinance, it is regarded as a civil suit in a justice's court unless a contrary intention is indicated in the statute. In such case the remedy is by appeal to the common pleas.

4. Where the punishment prescribed for violating the ordinance is imprisonment to be imposed by a justice of the peace, the suit is in the nature of a criminal proceeding before the justice, and is not a civil suit in the smallcause court.

5. The criminal prosecution before the justice is a summary proceeding, which may be

tried without a jury, as it was before the Constitution of 1844 was adopted.

6. The question does not arise whether a jury may be demanded when the penalty exceeds $16.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of Herman Unger, against the inhabitants of the township of Fanwood, to review an ordinance regulating the speed of automobiles. Writ dismissed.

Argued February term, 1903, before VAN SYCKEL and GARRETSON, JJ.

Reed & Coddington, for prosecutor. Coddington & Swackhamer, for defendant.

VAN SYCKEL, J. The writ in this case brings up for review only an ordinance passed by the township committee of Fanwood regulating the speed of automobiles and providing punishment for its violation. The affidavit upon which the writ was allowed sets up that the prosecutor was arrested for an alleged violation of the ordinance, but the proceedings in that suit are not by this writ certified into this court.

The prosecutor is met with the objection that in this posture of affairs he has no standing to sue out a certiorari. It is the established rule that a right of action does not exist in favor of one who is only damnified as one of the public in common with his fellow citizens. Kean v. Bronson, 35 N. J. Law, 468; Montgomery v. Trenton, 36 N. J. Law, 85; Jersey City v. Traphagen, 53 N. J. Law, 434, 22 Atl. 190; Tallon v. Hoboken, 60 N. J. Law, 212, 37 Atl. 895; Hamblet v. Asbury Park, 61 N. J. Law, 502, 39 Atl. 1022; Kendall Co. v. Jersey City, 65 N. J. Law, 123, 46 Atl. 647. In Hamblet v. Asbury Park, Mr. Justice Garrison, in delivering the opinion of the court, said, "Conviction alone can furnish evidence that the ordinance affects the prosecutor."

The prosecutor's writ is an attack upon the ordinance exclusively, and not upon the proceeding which he alleges has been illegally instituted against him. For the purpose of arresting the further prosecution of that suit, the writ was prematurely granted. He should have waited judgment in the case before he sued out his writ. He is not within the exception to the rule that certiorari will not be allowed before a final decision is reached in the inferior tribunal. Hoxsey v. Paterson, 39 N. J. Law, 489. Under the present aspect of the case, therefore, the prosecutor has no interest in the validity of the ordinance other than that which is common to all citizens.

But if the validity of the ordinance may be challenged by the prosecutor, is there any infirmity in it? The act of 1899, p. 385, § 32, gives the town committee power to pass ordinances to prevent immoderate driving or riding on any street or highway. Section 22, page 380, gives power to the town committee to prescribe by ordinance a penalty

for violating any ordinance by fine not exceeding $100, or by imprisonment in the township lockup or county jail not exceeding 90 days, or by both. Such ordinance may prescribe the amount of fine or term of imprisonment, or it may provide that the justice before whom the proceeding shall be instituted shall determine whether the penalty shall be by fine or imprisonment, and, if by fine, the amount thereof, and, if by imprisonment, the term thereof, within the limits above prescribed. This ordinance was duly passed, and was within the granted power. Section 23, p. 381, of the act of 1899 authorizes arrest without warrant on view of the officer for violating the ordinance. The cases hold that, where the violation of an ordinance is punishable by fine only, the proceeding before a justice of the peace is a civil suit. Penna. R. Rd. v. N. J. Society, 39 N. J. Law, 400; Greely v. Passaic, 42 N. J. Law, 429; Brophy v. Perth Amboy, 44 N. J. Law, 217; White v. Neptune City, 56 N. J. Law, 222, 28 Atl. 378. In the case last cited Mr. Justice Dixon held that the construction that it is a civil suit should be favored, and that in such cases certiorari will not lie, the remedy being by appeal to the common pleas, the justice having jurisIdiction in the small-cause court.

In the case in hand the justice may punish by fine or by imprisonment. The act of 1899 expressly giving to the township committee the power to confer upon a justice of the peace the right to adjust the penalty in each case within the statutory limits, the ordinance in that respect is valid. Young v. Atlantic City, 60 N. J. Law, 126, 37 Atl. 444. The justice having power to impose punishment by imprisonment alone, the case is not within the authorities above cited which apply to a civil suit. This is in the nature of a criminal proceeding before a justice of the peace, and not a civil suit in a justice's court. Johnson v. Barclay, 16 N. J. Law, 1; McGear v. Woodruff, 33 N. J. Law, 216. It is a summary proceeding which may be tried without a jury as before the Constitution of 1844 was adopted. The question does not arise whether a jury may be demanded when the penalty exceeds $16. If it is a civil suit, certiorari will not lie, but appeal to the pleas is the appropriate remedy. If it is a summary proceeding to inflict punishment, certiorari will lie after judgment below, but the denial of a jury will be no ground for reversal.

The writ is dismissed, with costs.

(69 N. J. L. 572)

GARCIN V. ROBERTS. (Supreme Court of New Jersey. June 8, 1903.) WILLFUL TRESPASS-ACTION BEFORE JUSTICE

-DEFENSES-JURISDICTION.

1. An action brought before a justice of the peace under "An act to prevent willful trespassing upon lands" (Gen. St. p. 3682) proceeds

according to the provisions of the act constituting courts for the trial of small causes (Gen. St. p. 1870), and in such an action the defendant may plead title as provided in section 25 of the last-mentioned act.

2. The plea filed in this cause is not such as to oust the justice of his jurisdiction.

(Syllabus by the Court.)

Action by Edward H. Garcin against Samuel M. Roberts. Judgment for plaintiff, and defendant brings certiorari. Affirmed.

Argued November term, 1902, before GARRISON and GARRETSON, JJ.

Samuel M. Roberts, pro se. Woolman, for respondent.

Franklin C.

GARRETSON, J. The writ removes into this court a judgment rendered by a justice of the peace. The plaintiff brought suit against the defendant under the provisions of an act entitled "An act to prevent willful trespassing upon lands," approved February 17, 1857 (Gen. St. p. 3682), which are: "If any person or persons shall unlawfully enter upon any lands not his own after having been forbidden so to do by the owner or legal possessor of such lands, he shall forfeit and pay for each offense to the owner of said lands or his or her tenant in possession, the sum of three dollars to be sued for and recovered with costs in an action of debt before any justice of the peace in the state."

The state of demand set out that the plaintiff was in possession of a certain messuage and lot of land in Burlington county, and that on May 5, 1902, the defendant with force and arms, after being forbidden by notices placed and exposed in prominent places on said premises, and by words personally spoken to him by said plaintiff and other members of his household, willfully and unlawfully entered upon the lands not his own, but in lawful possession and occupation of the plaintiff, being the premises above deseribed, against the provisions of the above act; and demanded judgment for the sum of $3 and costs. The defendant pleaded to this demand that the close in the state of demand mentioned at the time when, etc., was not the close, freehold, or land of the said plaintiff, and that the said plaintiff is not and was not the owner or the tenant in possession thereof, and that the defendant entered upon and committed the said trespasses because he had a right and lawfully might do so. The justice overruled this plea, and, after hearing, gave judgment for $3 debt and $2.90 costs, and by this writ the defendant seeks to have this judgment reversed.

The defendant founds his right to file the plea of title on, and claims the jurisdiction of the justice was ousted by, the twenty-fifth section of "An act constituting courts for the trial of small causes" (Gen. St. p. 1870)— that when, in any action brought by virtue of this act, the defendant pleads title to any real estate in himself or another under whom he acted or entered, and commits the plea to writing, and observes certain other directions,

the plaintiff may prosecute his suit in the Supreme Court. While the trespass act directly confers jurisdiction upon the justice, such jurisdiction, if not directly conferred, would have existed by the fifth section of the small cause act, which gives the justice jurisdiction of suits to recover every sum of money or penalty not exceeding $100, to be sued for and recovered by virtue of any law of this state in any court of record or court having cognizance thereof; and in this latter case the entire conduct of the cause and all proceedings therein are regulated by the provisions of that act, except so far as the proceedings are modified by the statute prescribing the penalty. Penna. R. R. Co. v. Society, 39 N. J. Law, 400. The trespass act only provides for the recovery of $3 and costs. Of course, the costs recoverable must be the costs provided in the small cause act, and the conclusion is irresistible that all the proceedings must be in accordance with that act. The unlawful entering upon lands of another with or without being forbidden so to do by the owner or legal possessor of such lands gave a right of action to such owner without the trespass act. In such case the owner or possessor would be entitled to recover at least nominal damages, but no more damages unless proved. The trespass act does no more than fix the amount of damages for the simple act of entering; therefore the action is subject to the provisions of the small cause act in all respects, one of which is the right to plead title.

But the defendant has not brought himself within the provisions of this section. He does not by his plea allege title in himself or in any other person under whom he acted or entered, but simply says that he entered upon and committed the said trespasses because he had a right and lawfully might do So. Nor is he aided in this plea by the allegation that the close mentioned was not the close, freehold, or land of the plaintiff, or that the plaintiff is not and was not the owner or tenant in possession thereof. Such an allegation is no part of such a plea. The plea must show that the defendant has some right to the possession of the premises. This plea does not show that. The plaintiff's case is that he was in possession, not as owner, but as tenant. This the plea does not traverse. If the defendant's purpose is to contest the fact of the plaintiff's possession, it is within the competence of the court in which the action is pending.

The judgment below will be affirmed, with costs.

(69 N. J. L. 478) STATE v. CARNEY. (Supreme Court of New Jersey. June 8, 1903.) SUICIDE-CRIMINAL OFFENSE.

1. Attempt at suicide is an indictable offense in this state.

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Essex County.

Frank H. Carney was convicted of an attempt to commit suicide, and brings error. Affirmed.

Argued February term, 1903, before the CHIEF JUSTICE and HENDRICKSON, PITNEY, and FORT, JJ.

Hampson & Parry, for plaintiff in error. Chandler W. Riker and Louis Hood, for the State.

FORT, J. The plaintiff in error was convicted in the Essex county quarter sessions upon an indictment alleging that he "did unlawfully administer and cause to be taken by himself into his stomach a deadly quantity of a certain deadly poison called 'turpeth mineral,' with intent himself then and there, feloniously and of his malice aforethought, to kill and murder," etc.

There is but one question in this case: Is it a crime to attempt suicide in this state? Section 215 of "An act for the punishment of crimes" (revision of 1898), approved June 14, 1898 (Laws 1898, p. 854), enacts as follows: “215. Assaults, batteries, false imprisonments, affrays, riots, routs, unlawful assemblies, nuisances, cheats, deceits and all other offenses of an indictable nature at common law, and not provided for in or by this or some other act of the legislature, shall be misdemeanors, and be punished accordingly." It will thus be seen, as there is no independent enactment making attempt at suicide a crime, that whether it is a crime in this state will depend upon whether or not it was a crime at common law.

Mr. Bishop in his New Criminal Law (volume 2, 1187) asks and answers the question thus: "If one attempts to commit selfmurder and fails, is he indictable for a misdemeanor as though the attempt were on a third person? There would seem to be no ground for distinguishing the two cases, or distinguishing the common law of England and of our states on this question. And by the common law as administered in England this is an indictable misdemeanor." Selfmurder, like any other murder, was a common-law felony. 1 Hale, P. C. 411; 1 East, P. C. 219; Rex v. Russell, 1 Moody, 356; Bishop's New Criminal Law, vol. 1, § 511. Attempt at suicide was an indictable offense at common law. Regina v. Doody, 6 Cox, Crim. Cases, 463; Regina v. Buyers, 9 Cox, Crim. Cases, 247.

It is contended in the brief of the plaintiff in error that the cases just cited to sustain the statement that an attempt at suicide was criminal at common law were decided long after this country adopted the common law of England, and that by our first Constitution it was the common law of England as it then existed, and not as declared by subsequent decisions, which became the common law of this state. Conceding this position to be correct, that does not affect the force of

these decisions. They hold that it has always been the common law of England that one guilty of suicide or attempt at suicide was felo de se. That suicide was a felony at common law, and that attempts at suicide were likewise criminal, is clearly stated, and the authorities fully reviewed, by the Supreme Court of Massachusetts. Commonwealth v. Mink, 123 Mass. 422, 25 Am. Rep. 109. In Massachusetts, attempts at suicide are not punishable, or were not in 1870; but the fact that such attempts were criminal at common law is affirmed, and the fact that they are not indictable in that commonwealth is placed squarely on the ground that the common-law offense has been repealed by implication by their statute. Commonwealth v. Dennis, 105 Mass. 162. The reverse is the case in this state. Our statute, supra, makes all offenses of an indictable nature at common law, and not otherwise provided for by act of the Legislature, misdemeanors. Attempt at self-murder is a misdemeanor in this state.

In reaching this result we have not overlooked the dictum of Mr. Justice Collins in Campbell v. Supreme Conclave Heptosophs, 66 N. J. Law, 274, 49 Atl. 550, 54 L. R. A. 576, wherein he says that since 1776 neither suicide nor attempts to commit suicide are criminal in this state. It will be noticed that the learned justice does not cite or refer to section 215 of our own crimes act, above quoted. That the forfeiture of estates for crimes against the state was abolished by the first Constitution in 1776, and is still abolished, does not affect the criminal character of the offenses to which the nonforfeiture applies. Suicide is none the less criminal because no punishment can be inflicted. It may not be indictable because the dead cannot be indicted. If one kills another, and then kills himself, is he any less a murderer because he cannot be punished? If our statute were like that of Massachusetts, which provided that the punishment for attempts should only be one-half the penalty inflicted for the offense, then it might be said here, as there, that, as there was no punishment for suicide, there could be no indictment for an attempt unless the Legislature had provided punishment for. it. But our statute makes it a misdemeanor, because a commonlaw offense, and expressly provides the penalty for it as for other misdemeanors; hence the reasoning in Commonwealth v. Dennis, supra, goes to uphold the indictment in this case, rather than to overthrow it. The judgment of the Essex county quarter sessions is affirmed.

(69 N. J. L. 476)

STATE v. MacQUEEN et al. (Supreme Court of New Jersey. June 8, 1903.) CRIMINAL LAW-EXCEPTIONS TO CHARGE-ASSIGNMENTS OF ERROR.

1. Where a general exception is taken to a charge under section 140 of the criminal pro