
    The State v. David L. Wakely.
    The captains of militia companies, for defaults of attendance at petty musters, are authorized "by law .to hold Courts Martial, without any order from any of the field officers of the regiment.
    The captain, ordering the Court Martial, may preside as President; and is the one to approve of the sentence of the Court.
    A militia man is not allowed to send a substitute.
    Under the Act of 1808, enacting that ‘ ‘ every private who shall wilfully neglect to turn out at any ordinary muster, shall be fined the sum of one dollar and fifty cents, and fifty per cent, on the amount of his general tax, ’ ’ a sentence in these words and figures, viz., “§1 50, and 50 per cent.,” is sufficiently definite.
    Every Court, acting clearly within its jurisdiction, in a case legally submitted, is independent of all other Courts, to which no appeal is given.
    
      Prohibition ordered by his Honor Mr. Justice Nott, at Columbia ; motion to reverse the order of his Honor, and set aside the writ of prohibition.
    *In this case it appeared that David L. Wakely was captain of a militia beat company ; that for a default of Ainsley Hall, a private in *• said company, in attending company muster, the said Ainsley Hall was summoned before a Court Martial, to answer for such default. That Captain Wakely presided, and two of the lieutenants of his company, were the members of the same ; that upon the trial of the said Ainsley Hall, he was fined for said default, and an execution issued, by the said Captain Wakely, to enforce the collection of the said fine.
    His Honor Mr. Justice Nott, granted a writ of prohibition, to restrain proceedings on the said execution, on the grounds :
    1. That the said David L. Wakely, and the other members of the Court Martial, were never authorized to hold said Court by any order issued by any of the field officers of the regiment to which he was attached, or any other officer having authority to make such order.
    2. Because the said Court Martial exceeded its jurisdiction, or acted without any jurisdiction.
    The defendant moved, that the said order of his Honor be reversed, and that the writ of prohibition be set aside, on the grounds :
    1. That the captains of companies for defaults of attendance at petty musters, are authorized by law to hold Courts Martial, and preside as Presidents of such Courts, together with their subaltern officers, as members of such Courts in their respective companies, without any order from any superior officer of the regiments to which they may be attached, and may enforce the sentence of their respective Courts, without the same being approved of by any superior officer.
    2. Because the Court Martial that tried Ainsley Hall, was constituted according to law, and had jurisdiction of his case, and tried the same fairly, and according to law, and had a right to enforce the sentence of the Court without submitting it to the approval of any other officer,
    *3. Because the order for a writ of prohibition is not founded in law, r. and ought to be reversed, and the writ set aside. ■-
   The opinion of the Court was delivered by

Kichardson, J.

The grounds suggested for a writ of prohibition are

1. That the captain of a militia company cannot order a Court Martial.

2. That the sentence of the Court must be approved by some officer ordering the Court.

3. That a militia man has a right to send a substitute.

This Court is of opinion, that none of these grounds are tenable.

As to the first, the Act directs simply, that, &c., privates be tried by not less than three commissioned officersMiller’s Mil. Law, sec. 5T ; but by whom the Court shall be ordered, is not expressly pointed out. In order that the statute may avail, we must conclude that the Court is to be ordered by the officer commanding at the time when the default occurred ; that is to say, the captain, in this case.

This construction also points out who is to approve of the sentence. The injunction (Miller’s M. L., sec. 51) is, that it shall be done by the officer ordering the Court. In the instance before us, the captain, in adjudging the fine, together with the rest of the Court, and by his execution, of course, approved.

Upon the third ground, it is enough to say, that there is no law authorizing a militia man to send a substitute; and though in general, but a reasonable indulgence, yet it is too disadvantageous to military discipline and improvement, to admit it as a general privilege, unless expressly given.

Blanding, for the motion. Levy, contra.

It was noticed, that the sentence being in these words and figures, to wit, “$1 50, and 50 per cent.,” was indefinite. But the statute (see Miller, 42, sec. 124,) fixes the fine at $1 50, and 50 per cent, on the *4151 * gen eral tax of the defaulter, which render the sentence intelli-J gible.

After the other case of the State v. D. L. Wakely, just now decided, and several others lately adjudged, in cases of patrol fines, militia fines, and upon proceedings by justices and freeholders, between landlord and tenant, I will not repeat the doctrine of prohibition further than to repeat, that every Court, acting clearly within its jurisdiction, in a case legally submitted, is independent of all other Courts, to which no appeal is given. Mere irregularity, insufficiency of proof, and mistaken judgments, in such cases, generally, afford matter of appeal only. But should we, under the name of prohibition, entertain appeals not expressly given to us, this Court would take jurisdiction, and might review all cases from inferior Courts.

The motion to reverse the order is, therefore, granted.

Gantt and Cotcooic, JJ., concurred. 
      
      
         Ants, 174, 410. IN. & MeC. 504, and ante. Post. 419.
     