¶1delivered tbe opinion of tbe court.
¶2Tate, tbe appellee, was indicted for perjury in tbe circuit court of Yalobusha county. Tbe perjury is charged to have been committed upon tbe trial of a civil cause before H. A. Goforth, a justice of tbe peace of district No. 2 of said county. Goforth was the only witness put upon tbe stand; be testified that he was elected a justice of tbe peace of district No. 2 of said county, and that the case of Wagner & Co. v. J. M. Tate was brought before him, in the trial of which case perjury is alleged to have been committed by Tate; but that be held bis court and tried said cause in district !No. 3 of said county. Other evidence was given by Goforth, but not enough to support a conviction of tbe defendant. Whereupon the defendant’s counsel moved the exclusion of all the evidence and for a peremptory instruction in favor of the defendant, which was done. In our opinion it wuuld have been proper for the court to have heard all the evidence in the case before forcing the state to rest the prosecution; for it might have been that the state could have offered stronger proof of the guilt of the defendant than the testimony given by Goforth, and it might have shown that the trial of the case was had in district No, 2, and not in district No. 3, as was supposed by Go-forth.
¶3Jut if we are to understand the district attorney as consenting that the testimony of Goforth that the trial of the case of Wagner & Co. v. Tate was had in district No. 3, was in fact trie, then it would have been useless to have proceeded further.
¶4Justice Goforth could hold his court only in district No. 2. the district of his election. 3iy § 2399, annotated code, a •iistice of the peace is required to hold his court in his dis*472trict, and Goforth was without jurisdiction to try the case in district No. 3. The matter ivas jurisdictional and the action of Goforth was a nullity. Phillips v. Thrall, 26 Kan., 780; Durfee v. Grinnell, 69 Ill., 371.