court, but it can not be offered as substantive evidence. 491.

Jordan, 110

Sec. 357 (1151). When prisoner shall be discharged. 1868-'9, c. 178, sub chap. 3, s. 20.

If, upon examination of the whole matter, it shall appear to the magistrate either that no offence has been committed by any person or that there is no probable cause for charging the prisoner therewith, he shall discharge such prisoner.

Sec. 358 (1152). When prisoner shall be bound over. 1868-'9, c. 178, sub chap. 3, s. 21.

If it shall appear that an offence has been committed, and that there is probable cause to believe the prisoner to be guilty thereof, the magistrate shall bind by recognizances the prosecutor and all the material witnesses against such prisoner to appear and testify at the next term of the court having jurisdiction for the county in which the offence is alleged to have been committed. Sec. 359 (1153). Magistrate need not take the examination of a prisoner charged with a misdemeanor. 1868-'9, c. 178, sub chap. 3, s. 22.

Nothing contained in the preceding sections of this chapter shall be construed to require any magistrate, before whom a prisoner charged with a misdemeanor shall be brought, to take the examination of such prisoner, except where such magistrate shall deem it material so to do, or where such examination shall be required by the prisoner.

Sec. 360 (1157). Examinations and recognizances to be certified to the court by the committing magistrate. 1868-'9. c. 178, sub chap. 3, s. 26.

All examinations and recognizances taken pursuant to the provisions of this chapter shall be certified by the magistrate taking the same to the court at which the witnesses are bound to appear, at the first day of the sitting thereof; and the examinations taken and subscribed as herein prescribed, may be used as evidence before the grand jury, and on the trial of the accused, provided he was present at the taking thereof and had an opportunity to hear the same and to cross-examine the deposing witness, if such witness be dead or so ill as not to be able to travel, or by procurement or connivance of the defendant, hath removed from the state or is of unsound mind.

Sec. 361 (1158). Penalty on magistrate failing to make the required return. 1868-'9, c 178, sub chap. 3, s. 27.

If any magistrate shall refuse or neglect to return to the proper court any such examination or recognizance by him taken, he may

be compelled by rule of court forthwith to return the same, and in case of disobedience of such rule, may be proceeded against by attachment as for contempt of court as provided by law.

Sec. 362 (1159). The magistrate may associate with himself another. 1868-'9, c. 178, sub chap. 3, s. 28.

It shall be lawful for any magistrate, to whom any complaint may be made, or before whom any prisoner may be brought, as hereinbefore provided, to associate with himself any other magistrate of the same county; and the powers and duties herein mentioned may be executed by such two magistrates so associated.

COURT OF TWO JUSTICES CONSTITUTIONAL.—It is no objection to an indictment for perjury alleged to have been committed before two justices of the peace "acting and sitting together," that there is no such tribunal known to our constitution, since the above statute, which authorizes such a proceeding, is in pursuance of the provisions of the constitution, art. 4, sec. 12, which empowers the legislature to "allot and distribute" the judicial power and jurisdiction which does not pertain to the supreme court "in such manner as they may deem best. Flowers, 109—.

Sec. 363 (1216). Officers who are authorized to keep the peace. c. 178, sub chap. 2, s. 1.

1868-'9,

The following magistrates shall have power to cause to be kept all the laws made for the preservation of the public peace, and in execution of that power to require persons to give security to keep the peace, in the manner provided in this chapter, namely: The chief justice and associate justices of the supreme court, the judges of the superior and criminal courts, and of any special courts which may be hereafter created, the justices of the peace, the mayors or other chief officers of all cities and towns.

Sec. 364 (1217). Duty of magistrate on complaint being made. 1868-'9, c. 178, sub chap. 2, s. 2.

Whenever complaint shall be made in writing, and upon oath to any such magistrate that any person has threatened to commit any offence against the person or property of another, it shall be the duty of such magistrate to examine such complainant and any witnesses who may be produced, on oath, to reduce such examination to writing, and to cause the same to be subscribed by the parties so examined.

Sec. 365 (1218). When warrant to issue. 1868-'9, c. 178, sub chap. 2, s. 3.

If it shall appear from such examination that there is just reason to fear the commission of any such offence by the person complained of, it shall be the duty of the magistrate to issue a warrant under his hand, with or without seal, reciting the complaint, and

commanding the officer to whom it is directed forthwith to appre hend the person so complained of, and bring him before such magistrate or some other magistrate authorized to issue such warrant.

Sec. 366 (1219). To whom the warrant shall be directed. 1868-'9, c. 178, sub chap. 2, s. 4.

The warrant shall be directed to the sheriff, coroner or any constable, each of whom shall have power to execute the same within his county; and if no sheriff, coroner or constable can conveniently be found, the warrant may be directed to any person whatever, who shall have power to execute the same within the county in which it is issued. No justice of the peace, or mayor, or other chief officer of any city or town shall direct his warrant to any officer outside of the county of said justice or chief officer.

Sec. 367 (1178). Criminal proceedings to issue and be returnable at any time; proceedings as heretofore. R. C., c. 35, s. 9. 1777, c. 115, s. 15.

All process, warrants and precepts, issued by any judge or justice of the peace, or clerk of any court, on any criminal prosecution, may issue at any time, and be made returnable to any day of the term of the court, to which such warrant, process, or precept is returnable.

INDICTMENTS AGAINST JUSTICES OF THE PEACE.-Defendant, upon affidavit made by the prosecutor in a certain case for forcible trespass, issued a warrant against the persons therein named as defendants, and upon the hearing bound such persons over to the next term of the superior court, and subsequent to the said term of the superior court, defendant issued another warrant upon the same affidavit against the same parties for the same offence: Held, that an instruction that if the jury believed defendant used his official position for the purpose of wrong and oppression, he was guilty, was correct. Sneed, 84-816.

In such case it was not error to refuse to charge that the evidence of one witness that he did not make a certain affidavit was not sufficient to contradict the fact recited in the justice's warrant issued upon such affidavit. Ib.

WHAT NECESSARY TO MAINTAIN INDICTMENT.-To maintain a criminal action against a justice of the peace it must be alleged and shown that he acted without his jurisdiction, or corruptly and with a criminal intent, or at least maliciously and without probable cause. Ferguson, 67—

219.

FACTS MUST BE SET OUT.-An indictment against a justice of the peace for corruption in office must not only allege that the act was done corruptly, but must also set out the facts in which the corruption consists. Zachary, 44 (Busb.), 432.

REQUISITES FOR INDICTMENT FOR REFUSAL TO ISSUE WARRANT.-An indictment against a justice of the peace for refusing to issue his warrant for the arrest of a felon must allege either that the felony was committed in his presence, or the tender to him of an affidavit of its commission, and that the felon was in the magistrate's county when the refusal took place. Leigh, 20 (3 D. & B.), 127.

JUSTICE'S COURT NOT A COURT OF RECORD.-The court of a justice of the peace is not a court of record, and the rules of evidence established for the proof and authentication of the proceedings of courts of record do not apply to such courts. Green, 100-419.

Sec. 368 (1754). lessor's lien.

LANDLORD AND TENANT.

Possession of crops deemed vested in lessors; preference of 1876-'7, c. 283, s 1.

When lands shall be rented or leased by agreement, written or oral, for agricultural purposes, or shall be cultivated by a cropper, unless otherwise agreed between the parties to the lease or agree ment, any and all crops raised on said lands shall be deemed and held to be vested in possession of the lessor or his assigns at all times, until the rents for said lands shall be paid and until all the stipulations contained in the lease or agreement shall be performed, or damages in lieu thereof shall be paid to the lessor or his assigns, and until said party or his assigns shall be paid for all advancements made and expenses incurred in making and saving said crops. This lien shall be preferred to all other liens, and the lessor or his assigns shall be entitled against the lessee or cropper or the assigns of either who shall remove the crop or any part thereof from the lands without the consent of the lessor or his assigns, or against any other person who may get possession of said crop or any part thereof, to the remedies given in an action upon a claim for the delivery of personal property.

Sec. 369 (1759). Removal of crop by lessee without notice, a misdemeanor; unlawful seizure by landlord, a misdemeanor. 1876-'7, c. 283, s. 6. 1883, c. 83.

Any lessee or cropper, or the assigns of either, or any other person, who shall remove said crop, or any part thereof, from such land without the consent of the lessor or his assigns, and without giving him or his agent five days' notice of such intended removal, and before satisfying all the liens held by the lessor or his assigns, on said crop, shall be guilty of a misdemeanor, and if any landlord shall unlawfully, wilfully, knowingly and without process of law, and unjustly seize the crop of his tenant when there is nothing due him, he shall be guilty of a misdemeanor.

WHAT CONSTITUTES A SEIZURE OF THE CROP.-It is not essential that the landlord should take forcible or even manual possession of the crop, but the offence will be complete if he exercises that possession or control

which prevents the tenant from gathering and removing his crop in a peaceable manner. Ewing, 108-755.

INDICTMENT.-An indictment charging defendant with the removal of a crop "without satisfying all liens on said crop," is fatally defective. Merritt, 89-506.

An indictment charging defendant with removing the crop "without satisfying all liens on said crop," is defective. Rose, 90-712.

An averment that defendant removed the crop "without having given "any notice," is sufficient. Powell, 94–920.

An indictment which charges the lease and relation of landlord and tenant is sufficient without an averment that the landlord had a lien on the crop, since the statute implies the lien arising by virtue of the relation charged. Davis, J., dissenting. Smith, 106--653.

VARIANCE.-Where the indictment charges the defendant with the re moval of a crop produced on the land in 1884, under a lease made November 1st, 1883, for one year, and the proof is that the crop was produced under a lease made in March, 1883, for that year, the variance is fatal. Ray, 92-810.

Where the indictment charges an agreement to raise a crop on the lands of G and the proof shows the title to be in another who rented the lands to G, there is no varianec. Foushee, 117-766.

WHEN LESSOR INDICTABLE.-The lessor himself is indictable under this statute for removing the crop or any part thereof when he has previously conveyed his interest in the same to a third party. Rose, 90-712.

WHAT CONSTITUTES ONE A CROPPER AND NOT A TENANT.-An agreement by him who cultivates land that the owner who advances guano and seedwheat shall, out of the crop, be repaid in wheat for such advancements, constitutes the former a cropper and not a tenant. Burwell, 63-661.

INTENT. A tenant who, without the consent of, or notice to his landlord, and before satisfying all liens held by the lessor or his assigns, removes a portion of une crop from the land on which it was produced, is guilty, though the removal was only for the purpose of sheltering and protecting the crop on the tenant's own land. Williams, 106-646.

CHARGE-An instruction that defendant must pay for the rent and supplies, and he must give the five days' notice, and if he failed to do "either of these things" he would be guilty, is erroneous, since if he gave the notice and the landlord failed to enforce his lien, then it is not indictable to remove the crop. Crowder, 97-432.

PUNISHMENT.-Punishment for unlawfully removing a crop by imprisonment in the penitentiary for two years, is illegal and unauthorized, though the evidence shows that the removal was in the night time. Powell, 91-920.

Sec. 370 (1760). Misdemeanor for tenant or lessee to surrender possession to other person than landlord. 1883, c. 138.

Any tenant or lessee of lands who shall wilfully, wrongfully and with intent to defraud the landlord or lessor, give up the possession of the rented or leased premises to any person other than his landlord or lessor, shall be guilty of a misdemeanor, and fined or imprisoned, or both, at the discretion of the court.