
    The State against Doctor James.
    
      Columbia,
    
    
      April, 1799.
    
    AH fines and forfeitures imposed by any art of the legislature of this state» must be prosecuted or rued for with-ni six months after they are-incurred, and. not after; and if not sued for or prosecuted williin. the above time, it may be talien advantage of, by motion in arrest of judgment as well its by a plea in bar to the action or prosecution.
    See case <€ j)r. Frasers ante, p. 96.
    UPON an indictment for a misdemeanor.
    This was an indictment at Orangeburgh, for branding a negro with a hot iron, contrary to the form of the act of the legislature, in such case made and provided, which inflicted a fine of 100/. for such an offence.
    The defendant was convicted on very clear testimony, upon the plea of not guilty pleaded, and upon being called up by the court to receive sentence, notice of a motion in arrest of judgment was given ; whereupon, he was ordered up to Columbia, and security taken for his appearance before the judges, at their then next meeting in the constitutional court of appeals at Columbia, there to wait and abide the final decision of his case before that court.
    The motion in arrest of .judgment was accordingly brought forward in the court of appeals agreeable to the notice ; when it was urged, that the defendant ought to be discharged from this prosecution, as it was for a heavy fine under an act of the state, and the prosecution was not commenced until after the expiration of six months next after the offence was committed, conformable to the act of 3748 ; and the case of The State v. Dr. Fraser, was relied on as in point upon the subject; and what was good cause in bar of the prosecution, was good cause in arrest of judgment.
    To this it was replied, by Mr. Solicitor Colead, that the act of 174-8 ought to have been pleaded in bar to the prosecution, and that it was now too late to take advantage of it, after a conviction upon the plea of not guilty pleaded. That in the ca-■ of Dr. Frasery the act was specially pleaded, and the court gave judgment upon the plea.
    
      The ground for arresting a judgment must be such, as would have been good on demurrer or fleet in abatement.
    
   Sed per Curiam.

.It is a general rule with regard té arrests of judgment upon matter of law, that whatever is alleged in arrest of judgment, must be such matter as would upon a demurrer or plea in bar, 'be sufficient to overturn or destroy the action. 1 Cromp. 327. And the rule is the same1 both in civil and criminal cases.

Now there is no doubt, but the act of 1748 would have been a good plea in bar to this prosecution, if it had been pleaded ; for it expressly declares, that in all and every case, where nay penalty, fine, or forfeiture hath been, or shall be inflicted, or imposed by any act of assembly, the time for prosecuting such offenders shall be limited to six months after the time of the offence committed, or penalty incurred, and not afterwards. If, then, this act would have been a good plea in bar, and would have destroyed the prosecution. in limine, there can be no doubt but it is good cause to arrest the judgment, as the cause of action, or rather prosecution, was gone in law after the expiration of six months, and it was admitted, that this prosecution was not commenced until long after that time. The pleading issuably, or denying the facts and going into the merits of this case, which might have been in the defendant’s favour, does not in a criminal case, deprive him of this advantage of the arrest of judgment.

Let the judgment be therefore arrested.

Present, Burke, Waties and Bat.  