(after stating the facts). 1. The first ground of exception was to the refusal of the Court to charge that there was a variance between the indictment and the proof.

What amounts to a variance is a question of law, and the facts being admitted or proven, must be determined by the Court. The cases of State v. Raiford, 2 Dev., 214, and State v. Isham, 3 Hawks, 185, cited by counsel for the defendant, were issues joined on pleas of nul tiel record, and were properly tried by the Court, and not by the jury; but if the determination of the question depends upon an issue of fact, it must be passed upon by the jury, with instructions from the Court as to the law, as was done by the Court in this case and this is not in conflict with State v. Harvell, 4 Jones, 55. There was, in fact, no variance, as upon the finding of the jury, under instructions from the Court, the action before the Magistrate in which the perjury is alleged to have been committed was dismissed as to Shipp, and the cause was at issue only between Rigsbee and the defendant. State v. Collins, 85 N. C., 511.

But as the summons was issued against two, it was insisted that parol evidence was not competent to show that the action was dismissed as to one. This is a misapprehension. • 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. Reeves v. Davis, 80 N. C., 209.

2. The second exception is, that the alleged fact testified to was immaterial, because it could be of no avail, as the deed passed the crop with the land, and the parol reservation was of no effect. This, also, is a misapprehension. Growing crops may be excepted or reserved by parol in the sale of land, and when so reserved do not pass by the deed conveying the land. “ The reason is,” as was said by Bynum, J., in Bond v. Coke, 71 N. C., 97, illustrating the distinction between those chattels which become merged in the land, *423 and those which, though annexed to the land, do not pass with it, “ that the}'' are frudus industriales, and, for most purposes, are regarded as personal chattels, even before they, are severed from the soil.” Brittain v. McKay, 1 Ired., 265, and Lewis v. McNatt, 65 N. C., 63.

Crops growing on land are presumed to pass with the title, but this presumption may be rebutted. Walton v. Jordan, 65 N. C., 170.

3. The motion in arrest of judgment was properly overruled. It is not denied that the Justice of the Peace had jurisdiction of the action, in the trial of which the alleged perjury was committed, and it is charged in the usual form, that the oath was duly administered, “ the said G. A. Barbee, Justice of the Peace, as aforesaid, having then and there competent authority and power to administer the said oath to the said C. J. Green.” State v. Davis, 69 N. C., 495.

There is no error.

No error. Affirmed.