The opinion of the court was delivered by

The writ in this cause removes for review a judgment of the small cause court before John C. LaFancherie, Esq., justice of the peace of the county of Essex, in an action in which the defendant Carmina Lunetta was plaintiff and this prosecutor was defendant. The suit was one of trespass for assault and batterjq and judgment was rendered for the plaintiff for $161 and costs.

The defendant insisted at the trial that the justice was without jurisdiction to hear the cause, since the act constituting the small cause court (Pamph. L. 1903, p. 251, § 1) expressly excepted from its jurisdiction, inter alia, actions of “trespass for assault, battery or imprisonment.”

In overruling this objection and proceeding to judgment in the cause the' justice clearly exceeded his. jurisdiction and his judgment was therefore a nullity.

The objection now urged by the defendant here that the prosecutor by filing his reasons in this proceeding out of time *339has waived his right to contest the validity of the judgment, cannot be sustained, for the reason -that under the rules and practice of this court, such objection should be made upon notice and heard as a distinct proceeding in the cause.

The judgment nnder review will therefore be vacated and set aside.