Judges of the supreme, circuit, city, probate and county courts, chancellors, justices of the peace, mayors of incorporated cities or toAvns, within the territorial limits jirescribed for each'by the statute, are committing magistrates. — Code, §§ 5161, 5204, 5295. For the purposes of issuing a warrant upon complaint made of the commission of a criminal offense, any one of these officers, Avithin the territorial limits of his jurisdiction and, for the purposes of a preliminary examination of the defendant after arrest, is equal iu jurisdiction and authority to any of the other magistrates named in section 5161 of the Code.
When a defendant is arrested on a warrant for a felony, in the county where the offense is charged to have been committed, it is made the duty of the arresting offi*113cer, to carry liim before the magistrate who issued the warrant, or if such magistrate is unable to attend, or his office is vacant, before some other magistrate of the county in which such warrant issued, etc. — Code, § 5223.
Section 5229 of the Code provides, “that when a defendant is ¡brought before a magistrate for examination, such magistrate may adjourn the examination from time to time, as may be necessary, not exceeding ten days at one time, without the consent of defendant, and to the same, or a different place in the county; and in such case, if the defendant is charged with a capital offense, he must be committed to jail meantime,” etc. At the appointed time, it becomes the duty of the examining magistrate to proceed; as prescribed by the Code, to inquire into the commission of the offense, and discharge, bail, or commit without bail, as the facts of the case may in his judgment require. — §§ 5233-5237.
The State moved to dismiss the proceeding in this case, because the petition was not verified by the oath of the applicant as required by statute; because the probate judge had no jurisdiction or authority to issue the writ, for the reason, that at the time of the filing of the petition for the same, there was a preliminary proceeding pending before S. H. Herrin, a justice of the peace in and for Cullman county, for the trial of defendant upon a charge of murder, which, case was continued a number of times by the defendant, the last time, until the 8th day of January, 1900, which proceeding was still pending and undetermined before said justice of the peace, and no sufficient reason was shown in the petition for the writ, ivhy the trial of defendant should be removed from the justice of the peace, to and be tried by the probate judge, the defendant being in jail in the custody of the sheriff under a mittimus from said justice of the peace to the sheriff.
The petitioner demurred to this motion on the ground, that it set up no facts in bar of the hearing of said habeas corpus case by the probate judge, and because the writ of habeas corpus is superior in law to all other proceedings, and can be heard at any time when the petitioner is imprisoned on any charge or accusation. This *114demurrer was sustained, and the motion to dismiss the proceeding denied.
On the trial of the motion, it appeared, that when the petitioner was arrested, he was carried before S. H. Herrin — the magistrate who issued the writ of arrest— for preliminary examination; that a mittimus was issued by him to the sheriff, to receive the defendant into his custody and detain him during the pendency of the preliminary examination, and until lie was legally dis-' charged; and that it was under this mittimus the defendant was held when the writ of habeas corpus was sued out by him. The grounds for suing it out, as stated in the petition were, that petitioner was entitled to a hearing and admission to-bail, and that he was not guilty of said offense. It appeared, that the trial was postponed.from time to time at his instance, and during such postponement, he sued out this writ, to remove the preliminary examination of defendant from before said committing magistrate who issued the writ, to the probate judge, who had no higher authority in the premises than the justice, and this, upon the sole pretense, that the jurisdiction of the probate judge was superior to and ousted the jurisdiction of the justice of the peace in the preliminary trial of the defendant. But such- a contention has no support in law. The jurisdiction of the justice having attached for the preliminary trial of defendant, it could not {be usurped or ousted by any other committing magistrate, for the reason that until the trial ended, the jurisdiction of one such magistrate for such a proceeding is equal, and not superior, to that of any other magistrate named in the statute. The probate judge was, therefore, without authority to interpose by writ of habeas corpus to determine the questions of discharge, bail, or commitment without bail, which, for the time, the magistrate who issued the writ of arrest, and had the defendant before him for the purpose, had the exclusive right to determine. — Gould v. Hays, 19 Ala. 438; Opelika v. Daniels, 59 Ala. 211; Ex parte Kittrell, 20 Ark. 499; State v. Fifth District Judge, 32 La. Ann. 315; 9 Ency. Pl. & Pr. p. 1010, and authorities therq cited.
*115The order of the probate judge admitting the defendant to bail will be reversed and annulled, and an order will be here ■ entered dismissing the proceedings on habeas corpus before him at the cost of the petitioner therefor. The defendant will remain in custody until legally discharged.
Reversed and rendered.