The opinion of the court was delivered by

The complaint in this case is evidently drawn under section 3 of the “Act concerning disorderly persons.” Pamph. L. 1898, p. 942.

The complaint is against the defendants jointly, and charges two offences, upon conviction for either of which the defendants could be adjudged disorderly persons.'

The conviction in the record is as follows: “Upon the law and testimony, I convicted Daniel Regan and Cornelius Regan of being guilty of being disorderly persons as charged.”

The defendants were not charged with being disorderly persons, nor could they be. The charge against them was for having (1) “uttered loud, offensive and indecent remarks * * * concerning the complainant,” and (2) “that they did obstruct and interfere with deponent, he being then and there lawfully upon the street.”

*107By section 40 oi the “Act concerning disorderly persons,” it is expressly provided that “in all cases when any person is convicted of having violated any of the provisions of this act” it shall be lawful for the magistrate to sentence to fine or imprisonment. The conviction must be for some offence mentioned in the act. Being a disorderly person is not an offence. A person must first be convicted of violating some provision of the act before he can, in the language of the act, be “deemed and adjudged a disorderly person.”

The record does not show that the defendants, ox either of them, were convicted of the offence charged, and the proceedings will be set aside; but with costs.