and talesmen who shall serve in his court, with the term at which they serve.

1893, c. 52, s. 3.

NOTE. See Clerk Superior Court.

NOTE.

For compensation of jurors, see s. 2798.

For list of guardians furnished grand jury, see Guardian, s. 1810.
For arguments to jury, see Attorneys, s. 216.

For jurors in justices' courts, see s. 1428
For province of, in divorce, see s. 1564.

et seq.

For right of trial by jury, see ss. 527, 533, 2005.
For waiver of trial by jury, see s. 540.

For verdicts by jurors, see ss. 550, 553.

NEGROES EXCLUDED.-The exclusion of all persons of the negro race from a grand jury, which finds an indictment against a negro, denies him the equal protection of the laws in violation of the constitution of the United States, where they are excluded solely because of their race or color. Peoples, 131784.

A motion to quash an indictment against a negro is the proper practice when negroes have been excluded from the grand jury solely on the ground of color. Peoples, 131-784.

Upon the filing of a plea in abatement and motion to quash on the ground that there was discrimination against the colored race in the revision of the jury lists by the county commissioners it appeared that the jury box contained the names of 430 persons, but it did not appear whether any of them were colored persons; that there were 528 colored males in the county over 21 and who had paid their taxes; that there are as many white males over 21 years of age in said county whose names are not in the box as there are colored males whose names are not in the box, and that in selecting the names to be placed in the box the commissioners did not think of or discuss the race question, but considered only the personal fitness of the men whose names were put in the box: Held, that it was proper to refuse the motion. Daniels, 134-643.

JUSTICES OF THE PEACE.

INDICTMENT 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 offense: 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.

NO BILL ON APPEAL.-No bill of indictment is required on appeal by defendant to the superior court from a conviction for a petty misdemeanor of which the recorder's court had jurisdiction, though the charge was larceny of three dollars worth of goods, the recorder having jurisdiction of all petty misdemeanors and larceny of goods less than $10 being made a petty misdemeanor in the act creating the recorder's court. Jones, 145—.

VOID WRIT OF RESTITUTION-FORCIBLE TRESPASS.-A justice of the peace who renders a void writ of restitution in an inquisition of forcible entry and detainer, and then personally assists in forcibly taking possession under the void writ, is guilty of forcible trespass. Auders, 30 (8 Ired.), 15.

Sec. 556 (3578). Ex-justice of the peace failing to turn over books and papers.

If any justice of the peace, on expiration of his term of office, or if any personal representative of a deceased justice of the peace shall, after demand upon him by the clerk of the superior court, willfully fail and refuse to deliver to the clerk of the superior court all dockets, law and other books, and all official papers which came into his hands by virtue or color of his office, he shall be guilty of a misdemeanor.

Code, ss. 828, 829; 1885, c. 402.

Sec. 557 (3588). Justice of the peace refusing to furnish bill of costs.

If any justice of the peace before whom any trial is held shall refuse to furnish an itemized bill of costs, when demanded by the plaintiff or defendant, he shall be guilty of a misdemeanor, and upon conviction shall be punished at the discretion of the court. Code, s. 734; 1887, c. 297.

Sec. 558 (3258). What submitted to jury.

In case a trial by jury shall be had, the justice shall submit to the jury in each case simply the question of the guilt or innocence of the accused of the offense charged, and shall enter the verdict. on his docket, and adjudge accordingly.

Code, s. 899; 1868-9, c. 178, subc. 4, s. 10.

Sec. 559 (3182). Procedure on arrest without warrant.

Every person arrested without warrant shall be either immediately taken before some magistrate having jurisdiction to issue

a warrant in the case, or else committed to the county prison, and, as soon as may be, taken before such magistrate, who, on proper proof, shall issue a warrant and thereon proceed to act as may be required by law.

Code, s. 1130; 1868-9, c. 178, subc. 1, s. 7.

It is proper that a complaint be made and the complainant and his witnesses examined before a warrant is issued. Moore, 136-582.

Sec. 560 (3260). Parties entitled to copy of papers; bar to indictment. He shall give to either party on request, and on payment of his lawful fee, a copy of the complaint and of his finding and sentence. Such finding and sentence may be pleaded in bar of any indictment subsequently found for the same offense.

Code, ss. 902, 903; 1868-9, c. 178, subc. 4, ss. 13, 14.

Sec. 561 (3589). Justice acting after removing from township.

If any justice of the peace shall act as such after having removed out of his township and not returned for six months, unless re-elected or re-appointed, or shall act as such without qualifying as required by law, he shall be guilty of a misdemeanor.

Code, s. 822.

Sec. 562 (935). Special constables appointed by justices.

For the better executing any precept or mandate in extraordinary cases, any justice of the peace may direct the same in the absence of, or for want of a constable, to any person not being a party, who shall be obliged to execute the same, under like penalty that any constable would be liable to.

Code, s. 645.

JUSTICE SOLE JUDGE AS TO NECESSITY FOR SPECIAL CONSTABLE. The justice of the peace is the sole judge of the "extraordinary cases" in which a special constable shall be appointed under this section. Armistead, 106— 639.

UNRESTRICTED DEPUTATION.-Where the deputation is unrestricted as, "J WF is hereby appointed special constable," it authorizes the service of all other process in that case by the special deputy, including the execution of a mittimus. Distinguishing State v. Dean, 3 Jones, 393. Armistead, 106-639.

DEPUTATION SHOULD SHOW ABSENCE OF REGULAR OFFICER.-While it is not necessary, still it is better for the special deputation to state that it is given for the want of a regularly constituted officer. Dula, 100–423.

EVIDENCE OF OFFICIAL CAPACITY OF SPECIAL DEPUTY.-The fact that defendants were arrested under the second order of arrest by the same special deputy who executed the original warrant, is some evidence that they knew of the capacity in which the officer was acting when making the second arrest. Dula, 100-423.

RESTRICTED DEPUTATION DOES NOT AUTHORIZE EXECUTION OF MITTIMUS.-A special deputation "to execute the within warrant" for the arrest of a person does not authorize the deputy to execute a mittimus in the case, and he is not liable for permitting the escape of the person arrested and committed to his custody under the mittimus, since his deputation ceased when he returned the warrant. Olan, 48 (3 Jones), 393.

WHO MAY BE APPOINTED.-A justice, in extraordinary cases, may appoint any one, not a party, to execute his mandate, and his decision is conclusive as to when such "extraordinary cases" arise for the exercise of such power. Wynne, 118-1206.

Sec. 563 (3261). Justice to make report of all criminal actions of which he has assumed final jurisdiction.

It shall be the duty of each justice of the peace on or before Monday of every term of the superior court of his county, to furnish the clerk of said court with a list of the names and offenses of all parties tried and finally disposed of by such justice of the peace, together with the papers in each case, in all criminal actions, since the last term of the superior court. The clerk of the court shall hand a copy of such list to the solicitor and to the grand jury at each term of court; and no indictment shall be found against any party whose case has been so finally disposed of by any justice of the peace: Provided, that this section shall not be deemed to extend or enlarge or otherwise affect the jurisdiction of justices of the peace, except as provided by law.

Code, s. 906; 1869-70, c. 110.

NAMES OF CASES DISPOSED OF INDICTMENT.-A motion in arrest of judgment, on the ground that the indictment does not state the names of the cases finally disposed of by defendant, can not be sustained. Foy, 98-744.

JUSTICE OF THE PEACE-REPort of Cases.-On indictmert against a justice of the peace for violation of section 326 (The Code, sec. 906), requiring justices of the peace to make return to the superior court of all criminal cases "finally disposed of" by them, the jury returned a special verdict finding that such failure was attributable to the fact that the defendant had no such cases before him during the period set out in the indictment: Held, that the defendant was not guilty, as the law does not require a justice to make report that he has finally disposed of no cases. Latham, 110-490.

Sec. 564 (1455). Removals.

In al proceedings and trials, both criminal and civil, before justices of the peace, the justice before whom the writ or summons is retumable, shall, upon affidavit made by either party to the action that he has good reason to believe he is unable to obtain a fair trial before him, move the same to some other justice residing in the same township, or to the justice of some neighboring township if there be no other justice in said township: Provided, that no cause shall be more than once removed: Provided further, that such motion to remove shall be made before evidence is introduced. Code, s. 907; 1880, c. 15; 1883, c. 66.

Sec. 565 (1456). Removals, justice dead or incapacitated.

If any justice of the peace shall die or become incapacitated by removal, resignation or other cause, having any action, civil or criminal, pending before him, which shall not have been finally determined, such action shall not abate or be discontinued, but the plaintiff in such civil action, or any one on behalf of the state in such criminal action, may remove such action for further and fnal determination before any other justice of the peace of the same township in which the original action was pending, or before any justice of the peace of the same county when there is no other in the township, by filing the papers in said action with the justice to whom the same is removed and by giving ten days' notice to the defendant of such removal; and if the plaintiff in any civil action shall fail to give such notice of removal within ten days fron the happening of the death, removal, or resignation, or incapacity of such justice, then the defendant in such action may remove the same by giving like notice to the plaintiff; and if no notice is given by either party to such action within twenty days, ther such action shall stand discontinued without prejudice. The justice of the peace before whom such action may be removed shall proceed to try and determine the same, but he shall demand no fees or costs which have theretofore been properly advanced by any party to such action. After such removal either party shall be entitled to all the rights given in the preceding section.

1905, c. 121.

NO REMOVAL BEYOND TOWNSHIP OF JUSTICE.-The justice can not remove the place of trial beyond his own township. Warren, 100–489.

Where a case is removed to a justice of a neighboring township when there is another justice in the same township in which the action commenced, the justice to whom the case is thus removed has no jurisdiction and iis judgment is void. Ivie, 118-1227.

Defendant is not entitled to a removal of a case from before the mayor of a town. Joyner, 127-541.

Sec. 566 (3256). To hear and determine case, when.

When the justice shall be satisfied that he has jurisdidion, if no jury shall be asked for, he shall proceed to determine the case, and shall either acquit the accused or find him guilty, and sentence him to such punishment as the case may require, not to exceed in any case a fine of fifty dollars, or imprisonnent in the county jail for thirty days.

Code, s. 897; 1868-9, c. 178, subc. 4, s. 8.