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tried without a jury, as it was before the Con- for violating any ordinance hy ine not exstitution of 1844 was adopted.

ceeding $100, or by imprisonment in the 6. The question does not arise whether a jury may be demanded when the penalty exceeds

township lockup or county jail not exceeding $16.

90 days, or by both. Such ordinance may pre(Syllabus by the Court.)

scribe the amount of fine or term of imprisCertiorari by the state, on the prosecution

onment, or it may provide that the justice of Herman Unger, against the inhabitants

before whom the proceeding shall be instiof the township of Fanwood, to review an

tuted shall determine whether the penalty

shall be by fine or imprisonment, and, if by ordinance regulating the speed of automobiles. Writ dismissed,

fine, the amount thereof, and, if by imArgued February term, 1903, before VAN

prisonment, the term thereof, within the limSYCKEL and GARRETSON, JJ.

its above prescribed. This ordinance was

duly passed, and was within the granted Reed & Coddington, for prosecutor. Cod.

power. Section 23, p. 381, of the act of 1899 dington & Swackhamer, for defendant.

authorizes arrest without warrant on view

of the officer for violating the ordinance. VAN SYCKEL, J. The writ in this case

The cases hold that, where the violation of brings up for review only an ordinance pass

an ordinance is punishable by fine only, the ed by the township committee of Fanwood proceeding before a justice of the peace is regulating the speed of automobiles and pro

a civil suit. Penna. R. Rd. v. N. J. Society, viding punishment for its violation. The

39 N. J. Law, 400; Greely V. Passaic, 42 affidavit upon which the writ was allowed

N. J. Law, 429; Brophy V. Perth Amboy, sets up that the prosecutor was arrested for

44 N. J. Law, 217; White v. Neptune City, an alleged violation of the ordinance, but

56 N. J. Law, 222, 28 Atl. 378. In the case the proceedings in that suit are not by this

last cited Mr. Justice Dixon held that the writ certified into this court.

construction that it is a civil suit should The prosecutor is met with the objection be favored, and that in such cases certiorari that in this posture of affairs he has no

will not lie, the remedy being by appeal to standing to sue out a certiorari. It is the

the common pleas, the justice having jurisestablished rule tbat a right of action does

diction in the small-cause court. not exist in favor of one who is only damni- In the case in hand the justice may punfied as one of the public in common with his

ish by fine or by imprisonment. The act of fellow citizens. Kean v. Bronson, 35 N. J.

1899 expressly giving to the township comLaw, 468; Montgomery v. Trenton, 36 N. J.

mittee the power to confer upon a justice Law, 85; Jersey City v. Traphagen, 53 N.

of the peace the right to adjust the penalty J. Law, 434, 22 Atl. 190; Tallon v. Hoboken,

in each case within the statutory limits, 60 N. J. Law, 212, 37 Atl. 895; Hamblet v.

the ordinance in that respect is valid. Young Asbury Park, 61 N. J. Law, 502, 39 Atl.

V. Atlantic City, 60 N. J. Law, 126, 37 Atl. 1022; Kendall Co. v. Jersey City, 65 N. J.

444. The justice having power to impose Law, 123, 46 Atl. 647. In Hamblet v. As

punishment by imprisonment alone, the case bury Park, Mr. Justice Garrison, in deliv- is not within the authorities above cited ering the opinion of the court, said, “Convic

which apply to a civil suit. This is in the tion alone can furnish evidence that the or

nature of a criminal proceeding before a jusdinance affects the prosecutor."

tice of the peace, and not a civil suit in a The prosecutor's writ is an attack upon justice's court. Johnson v. Barclay, 16 N. the ordinance exclusively, and not upon the

J. Law, 1; McGear v. Woodruff, 33 N. J. proceeding which he alleges has been il

Law, 216. It is a summary proceeding legally instituted against him. For the pur- which may be tried without a jury as bepose of arresting the further prosecution of fore the Constitution of 1844 was adopted. that suit, the writ was prematurely grant

The question does not arise whether a jury ed. He should have waited judgment in the

may be demanded when the penalty exceeds case before he sued out his writ. He is not

$16. If it is a civil suit, certiorari will not within the exception to the rule that cer- lie, but appeal to the pleas is the appropriate tiorari will not be allowed before a final

remedy. If it is a summary proceeding to decision is reached in the inferior tribunal.

inflict punishment, certiorari will lie after Hoxsey v. Paterson, 39 N. J. Law, 489. Un

judgment below, but the denial of a jury der the present aspect of the case, there- will be no ground for reversal. fore, the prosecutor has no interest in the

The writ is dismissed, with costs. validity of the ordinance other than that which is common to all citizens. But if the validity of the ordinance may

(69 N. J. L. 572) be challenged by the prosecutor, is there any infirmity in it? The act of 1899, p. 385,

GARCIN V. ROBERTS. $ 32, gives the town committee power to pass

(Supreme Court of New Jersey. June 8, 1903.) ordinances to prevent immoderate driving WILLFUL TRESPASS-ACTION BEFORE JUSTICE

-DEFENSES-JURISDICTION. or riding on any street or highway. Section

1. An action brought before a justice of the 22, page 380, gives power to the town com

peace under "An act to prevent willful tresmittee to prescribe by ordinance a penalty passing upon lands” (Gen. St. p. 3682) proceeds according to the provisious of the act consti- the plaintiff may prosecute his suit in the tuting courts for the trial of small causes (Gen.

Supreme Court. While the trespass act diSt. p. 1870), and in such an action the defendant may plead title as provided in section 25 of

rectly confers jurisdiction upon the justice, the last-mentioned act.

such jurisdiction, if not directly conferred, 2. The plea filed in this cause is not such as would have existed by the fifth section of the to oust the justice of his jurisdiction.

small cause act, which gives the justice ju(Syllabus by the Court.)

risdiction of suits to recover every

sum of Action by Edward H. Garcin against Sam

money or penalty not exceeding $100, to be uel M. Roberts. Judgment for plaintiff, and sued for and recovered by virtue of any law defendant brings certiorari. Affirmed.

of this state in any court of record or court Argued November term, 1902, before GAR

having cognizance thereof; and in this latter RISON and GARRETSON, JJ.

case the entire conduct of the cause and all Samuel M. Roberts, pro se. Franklin C. proceedings therein are regulated by the proWoolman, for respondent.

visions of that act, except so far as the pro

ceedings are modified by the statute prescribGARRETSON, J. The writ removes into ing the penalty. Penna. R. R. Co. v. Society, this court a judgment rendered by a justice 39 N. J. Law, 400. The trespass act only of the peace. The plaintiff brought suit provides for the recovery of $3 and costs. against the defendant under the provisions of Of course, the costs recoverable must be the an act entitled "An act to prevent willful costs provided in the small cause act, and trespassing upon lands," approved February the conclusion is irresistible that all the pro17, 1857 (Gen. St. p. 3682), which are: "If ceedings must be in accordance with that act. any person or persons shall unlawfully enter The unlawful entering upon lands of another upon any lands not his own after having been with or without being forbidden so to do by förbidden so to do by the owner or legal pos- the owner or legal possessor of such lands sessor of such lands, he shall forfeit and pay gave a right of action to such owner withfor each offense to the owner of said lands out the trespass act. In such case the ownor his or her tenant in possession, the sum er or possessor would be entitled to recover at of three dollars to be sued for and recovered least nominal damages, but no more damages with costs in an action of debt before any jus- unless proved. The trespass act does no more tice of the peace in the state.”

than fix the amount of damages for the simThe state of demand 'set out that the plain-ple act of entering; therefore the action is tiff was in possession of a certain messuage subject to the provisions of the small cause and lot of land in Burlington county, and act in all respects, one of which is the right that on May 5, 1902, the defendant with force to plead title. and arms, after being forbidden by notices But the defendant has not brought himself placed and exposed in prominent places on within the provisions of this section. He said premises, and by words personally does not by his plea allege title in himself spoken to him by said plaintiff and other or in any other person under whom he acted members of his household, willfully and un- or entered, but simply says that he entered lawfully entered upon the lands not his own, upon and committed the said trespasses bebut in lawful possession and occupation of cause he had a right and lawfully might do the plaintiff, being the premises above de- so. Nor is he aided in this plea by the alleseribed, against the provisions of the above gation that the close mentioned was not the act; and demanded judgment for the sum of close, freehold, or land of the plaintiff, or $3 and costs. The defendant pleaded to this that the plaintiff is not and was not the demand that the close in the state of de- owner or tenant in possession thereof. Such mand mentioned at the time when, etc., was an allegation is no part of such a plea. The not the close, freehold, or land of the said plea must show that the defendant has some plaintiff, and that the said plaintiff is not right to the possession of the premises. This and was not the owner or the tenant in pos- plea does not show that. The plaintiff's case session thereof, and that the defendant enter- is that he was in possession, not as owner, ed upon and committed the said trespasses but as tenant. This the plea does not trapbecause he had a right and lawfully might erse. If the defendant's purpose is to contest do so.

The Justice overruled this plea, and, the fact of the plaintiff's possession, it is after hearing, gave judgment for $3 debt and within the competence of the court in which $2.90 costs, and by this writ the defendant the action is pending. seeks to have this judgment reversed.

The judgment below will be affirmed, with The defendant founds his right to file the costs. 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

(69 N. J. L. 478) trial of small causes” (Gen. St. p. 1870)—

STATE v. CARNEY. that when, in any action brought by virtue

(Supreme Court of New Jersey. June 8, 1903.) of this act, the defendant pleads title to any

SUICIDE-CRIMINAL OFFENSE. real estate in himself or another under whom

1. Attempt at suicide is an indictable offense he acted or entered, and commits the plea to in this state. writing, and observes certain other directions, (Syllabus by the Court.)

Error to Court of Quarter Sessions, Essex these decisions. They hold that it has always County.

been the common law of England that one Frank H. Carney was convicted of an at- guilty of suicide or attempt at suicide was tempt to commit suicide, and brings error. felo de se. That suicide was a felony at Affirmed.

common law, and that attempts at suicide Argued February term, 1903, before the were likewise criminal, is clearly stated, and CHIEF JUSTICE and HENDRICKSON, the authorities fully reviewed, by the SuPITNEY, and FORT, JJ.

preme Court of Massachusetts. CommonHampson & Parry, for plaintiff in error.

wealth v. Mink, 123 Mass. 422, 25 Am. Rep. Chandler W. Riker and Louis Hood, for the

109. In Massachusetts, attempts at suicide State.

are not punishable, or were not in 1870; but

the fact that such attempts were criminal at FORT, J. The plaintiff in error was con- common law is affirmed, and the fact that victed in the Essex county quarter sessions they are not indictable in that commonwealth upon an indictment alleging that he "did un- is placed squarely on the ground that the lawfully administer and cause to be taken by common-law offense has been repealed by himself into his stomach' a deadly quantity implication by their statute. Commonwealth of a certain deadly poison called 'turpeth v. Dennis, 105 Mass. 162. The reverse is the mineral,' with intent himself then and there, case in this state. Our statute, supra, makes feloniously and of his malice aforethought, to all offenses of an indictable nature at comkill and murder," etc.

mon law, and not otherwise provided for by There is but one question in this case: Is act of the Legislature, misdemeanors. Atit a crime to attempt suicide in this state? tempt at self-murder is a misdemeanor in Section 215 of “An act for the punishment of this state. crimes" (revision of 1898), approved June 14, In reaching this result we have not over1898 (Laws 1898, p. 854), enacts as follows: looked the dictum of Mr. Justice Collins in “215. Assaults, batteries, false imprisonments, Campbell v. Supreme Conclave Heptosophs, affrays, riots, routs, unlawful assemblies, nui- 66 N. J. Law, 274, 49 Atl, 550, 54 L. R. A. sances, cheats, deceits and all other offenses 576, wherein he says that since 1776 neither of an indictable nature at common law, and suicide nor attempts to commit suicide are not provided for in or by this or some other criminal in this state. It will be noticed that act of the legislature, sball be misdemeanors, the learned justice does not cite or refer to and be punished accordingly.” It will thus section 215 of our own crimes act, above be seen, as there is no independent enact- quoted. That the forfeiture of estates for ment making attempt at suicide a crime, that crimes against the state was 'abolished by whether it is a crime in this state will de- the first Constitution in 1776, and is still pend upon whether or not it was a crime at abolished, does not affect the criminal charcommon law.

acter of the offenses to which the nonforMr. Bishop in his New Criminal Law (vol- feiture applies. Suicide is none the less crim. ume 2, § 1187) asks and answers the ques- inal because no punishment can be inflicted. tion thus: “If one attempts to commit self- It may not be indictable because the dead murder and fails, is he indictable for a mis- cannot be indicted. If one kills another, and demeanor as though the attempt were on a then kills himself, is he any less a murderer third person? There would seem to be no because he cannot be punished? If our statground for distinguishing the two cases, or ute were like that of Massachusetts, which distinguishing the common law of England provided that the punishment for attempts and of our states on this question. And by should only be one-half the penalty inflicted the common law as administered in England for the offense, then it might be said here, this is an indictable misdemeanor." Self- as there, that, as there was no punishment murder, like any other murder, was a com- for suicide, there could be no indictment for mon-law felony. 1 Hale, P. C. 411; 1 East, an attempt unless the Legislature had proP. C. 219; Rex v. Russell, 1 Moody, 356; vided punishment for. it. But our statute Bishop's New Criminal Law, vol. 1, § 511. makes it a misdemeanor, because a commonAttempt at suicide was an indictable offense law offense, and expressly provides the pen. at common law. Regina v. Doody, 6 Cox, alty for it as for other misdemeanors; hence Crim. Cases, 463; Regina v. Buyers, 9 Cox, the reasoning in Commonwealth v. Dennis, Crim. Cases, 247.

supra, goes to uphold the indictment in this It is contended in the brief of the plaintiff case, rather than to overthrow it. in error that the cases just cited to sustain The judgment of the Essex county quarter the statement that an attempt at suicide was sessions is affirmed. criminal at common law were decided long after this country adopted the common law

(69 N. J. L. 476) of England, and that by our first Constitution it was the common law of England as

STATE v. MacQUEEN et al. it then existed, and not as declared by sub

(Supreme Court of New Jersey. June 8, 1903.) sequent decisions, which became the common

CRIMINAL LAW-EXCEPTIONS TO CHARGE-AS

SIGNMENTS OF ERROR. law of this state. Conceding this position to 1. Where a general exception is taken to a be correct, tbat does not affect the force of charge under section 140 of the criminal pro.

a

redure act, any assignment of error thereon , legality in the admission of evidence are also must, under section 141 of the act, set out "the

improperly framed. They are too general, portion of the charge” alleged to be erroneous. 2. An assignment of error in the following

and in no way refer to the evidence alleged form: “Because the whole charge of the said to have been erroneously admitted; but not. court was contrary to law and injurious to the withstanding this we have considered them, interests of the defendant"-is not good. It

and there is no error found to sustain the alleges the parts of the charge which are unquestionably good to be as bad as the parts

assignments either as made or as they should which may not state the correct legal prin- have been made. ciple. Such an assigoment is not within sec. The judgment of the quarter sessions is tion 141 of the act.

affirmed. (Syllabus by the Court.)

Error to Court of Quarter Sessions, Passaic County.

William MacQueen and Rudolph Gross- UNITED NEW JERSEY R. & CANAL CO. mann were convicted of crime, and bring V. CONSOLIDATED FRUIT JAR error. Affirmed.

CO. et al. Argued February term, 1903, before the (Court of Chancery of New Jersey. March 4, CHIEF JUSTICE and HENDRICKSON,

1903.) PITNEY, and FORT, JJ.

CONDEMNATION PROCEEDINGS TITLE OF

PROPERTY OWNERS-RIGHT TO CONTESTRobert E. Hovenberg, for plaintiffs in er- CO-TENANTS-TRUST RELATION PURCHASE

OF OUTSTANDING TITLE. ror. Eugene Emley, for the State.

1. In condemnation proceedings, property

owners whose title depends on couveyance from FORT, J. There are no assignments of

the heirs of a former owner cannot contest the error based upon the charge of the court in title of other heirs whose interest they have not this case which this court is called upon to acquired.

2. A purchaser of the interest of a person consider. There was a general exception tak

who has not been in adverse possession for 20 en to the charge of the trial judge, but no years, but for only a part thereof, does not portions of the charge have been pointed out thereby acquire a title superior to the holder of as erroneous and error assigned thereon.

the paper title.

3. Where relationship of confidence is By sections 140 and 141 of the criminal shown to exist between holders of the paper procedure act it is enacted as follows: title to property, one of them cannot acquire an

“140. Upon the trial of any indictment it outstanding title, and use it for the purpose of sball be lawful to take a general exception

defeating his co-tenant's rights, though they

hold by distinct conveyances. to the charge of the court to the jury, without specifying any particular ground or

Condemnation proceedings by the United grounds for such exception, and without

New Jersey Railroad & Canal Company specifying what portions of said charge are

against the Consolidated Fruit Jar Comexcepted to, and it shall be the duty of the

pany. On exceptions to the master's report.

Modified. judge to settle a bill of such exception, and to sign and seal the same, to the end that Alan H. Strong, for Clark. Mr. Booraem, the same may be returned with a writ of for Consolidated Fruit Jar Co. Willard P. error to the court having cognizance there- Voorhees, for Smith & Welsh. of. “141. It shall be lawful where such a gen

STEVENS, V. C. This case comes up on eral exception has been taken to assign any exceptions to the master's report. The facts error or errors of law upon any portion of are so fully stated by the master that I the charge so excepted to."

shall not here repeat them. The controP. L. 1898, p. 916.

versy is over the division of money paid into It will be seen that upon a general excep- court by the United New Jersey Railroad & tion to a charge it is made lawful to assign Canal Company on a condemnation proceederror on any portion of the charge so except- ing. This money was paid out to Smith & ed to. In this case the counsel of the de- Welsh under an order of this court, obtained fendants assign error on the charge only in upon an imperfect presentation of the facts. this general way: “Third. Because the whole The order was opened, and the case is to be charge of the said court was contrary to law decided as if the fund were still in the hands and injurious to the interests of the defend- of the clerk. No question is raised as to the ant.”. Such an assignment is of no force, and form of the proceeding; the jurisdiction of does not assign error "upon any portion of the court over the matter in controversy bethe charge so excepted to.” It assigns error ing, of course, indisputable. upon the whole charge, alleging it as a whole The question whether Smith & Welsh were to be bad and injurious to the defendant. entitled to be paid the whole of the fund An assignment of this kind is a mere con- depends upon whether they were the owners clusion-a mere statement of an alleged re- of the land condemned. They claim title in sult; not pointing out of any error com- three ways: (1) Because they are grantees plained of. We have, however, considered nr the heirs of Alpheus Freeman, who, it is the charge of the court with care, and find admitted, died seised of the lands in 1813. no error of law as therein stated.

(2) As to tracts A and B, because the ConThe assignments of error as to alleged il- solidated Fruit Jar Company deeded its title, acquired by adverse possession, to them; , fenced by Martin A. Howell, but the fencing and that title is, it is said, good against those inclosed the land of the railroad company as heirs. (3) As to tract C, because one Martin well; its tracks at that point being laid A. Howell acquired title by adverse posses- above grade, on a bridge or trestle. The sion as against the same heirs, and his ex- fence appears to have been put up for the ecutors conveyed that title to Smith & Welsh. purpose of preventing a nuisance. Howell

In 1892 it became known that the Penn- had shortly before built a paper factory to sylvania Railroad Company would require an the north of the railroad tracks, and he made additional strip of land on each side of its some use of the land under and on both track between its present passenger station sides of them for storing clay and dumping and the Raritan river. Smith & Welsh con- ashes. In 1873 he leased his factory propceived the idea of getting the title of the erty to the Consolidated Fruit Jar Company, Freeman heirs to this land, and selling it to which held under leases until 1880, when it the company, which did not at that time took title by a description which it is admithave the power to condemn. Accordingly ted did not include the locus in quo. A peMr. Grimstead, their attorney, began to bar- rusal of the evidence will show that, if Howgain for deeds from the numerous heirs of ell had adverse possession of the land in conAlpheus Freeman. One of those heirs was troversy, such possession commenced when Mary T. Clark. The evidence shows very he fenced, and that was prior to 1850, so plainly that Mr. Grimstead secured the co- that, when he conveyed to the fruit jar comoperation of James P. Clark, Mary's hus- pany the adjoining factory property, his title band, in his work of investigation. Mr. had become indefeasible. It is admitted he Grimstead obtained many deeds for Smith & did not convey the land, if thus acquired, to Welsh, and Clark, with the knowledge and the fruit jar company. Smith & Welsh are approval of Mr. Grimstead, secured deeds therefore placed in this dilemma: If Howell from some of the heirs himself, and thus be- had title, the money paid into court did not came entitled to 8/77 of the land. Mary T. represent that title, for Howell's heirs (he Clark's interest was 2/77. This appears not having died in 1889) were not parties to the only from Mr. Grimstead's letters, but also condemnation proceeding, and their title was by a deed prepared by him, which is dated not condemned. Inasmuch, therefore, as the May 11, 1894, made between James P. Clark

money represents nothing but the Freeman and Mary, his wife, and Philip Smith and title, it does not lie in the mouths of Smith Patrick M. Welsh. In this deed it is recited & Welsh to deny the right of the Clarks to that Mary Clark and James P. Clark's gran- share in it. If, on the other hand, Howell tors are tenants in common with Smith & had no title-and he never appears to have Welsh, and they agree to join in a deed to claimed any-then, of course, the title being the Pennsylvania Railroad Company. Smith indisputably in the Freeman heirs, the Clarks & Welsh did not sign this deed, and they take their share of the money, as a matter now say they did not know of it; but Mr. of course. Grimstead testifies that he put it on record It is argued, however, that under the deciat Smith's request, and I have no doubt what- sion of Davock v. Nealon, 58 N. J. Law, 21, ever that it was obtained in furtherance of 32 Atl. 675, the Consolidated Fruit Jar Comtheir general plan of proceeding.

pany could tack its possessory title of less If the money in court represents the value than 20 years to the possessory title of Howof the title of the heirs of Alpheus Freeman, ell, and that in this way it became the owner there can be no doubt but that Mr. and Mrs. of the land by 20 years' adverse possession Clark are entitled to 8/77 of it. It is claim- had prior to the year 1895, when the coned, however, that notwithstanding the fact demnation proceedings were taken. The diffthat Smith & Welsh took deeds from the culty with this contention is that, if the evibeirs of Alpheus Freeman, and paid in the dence shows that Howell had adverse possesaggregate several thousand dollars for them, sion from 1875 to 1880, the year in which he those heirs did not, in fact, have any title, conveyed to the fruit jar company, it also and that consequently Mr. and Mrs. Clark shows that he had such possession for over have no right to a share of the money, and 25 years prior thereto. His possession was so the master reported.

of precisely the same character prior to 1875 I will consider this contention first with as it was after 1875, and so he must have respect to tracts A and B. The original title become absolute owner at least 10 years beof Alpheus Freeman is beyond all question. fore the conveyance. And so it is not a case That title appears to have been recognized of tacking one possession of less than 20 by the New Jersey Railroad Company as late years to another possession of less than 20 as May, 1836, for in that month commis- years, so as to make a title absolute in the sioners appointed by the Chief Justice of the second possessor. The master, whose report Supreme Court awarded for the right of way indicates that he gave the case careful conthen taken, to the widow of Alpheus Free- sideration, appears to have overlooked this. man, $1,500, and to his heirs $1,750. The I think it quite plain that, in any view of land on both sides of the track for some the matter, the Clarks are entitled to their years after that remained open. Some time share of the money representing tracts A between 1845 and 1850 it was partially / and B.

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