
    Exparte.—James B. Richardson.
    
      A Slave was tried for a misdemeanor by a justice of peace and two ft eeholders,. sentenced and imprisoned. ■ The freeholders in. this case had not been summoned by warrant under the hand and seal of the justice-, and one of them did not reside m the County where the offence was charged to be committed, nor had any freehold there. Held that the court Was improperly or-* ganized, and prohibition granted.
    
    This was a suggestion for prohibition. The suggestion sets forth that on the 17th September, A. D. 1823, information on oath was' given by Edward Broughton, before Thomas Anderson, esq. justice of the peace of Clarendon county, in Sumter district, charging that Sam Mitchell, a negro man slave' ©f Colonel James B. Richardson, had shot at him, the said Edward Broughton, in the said county, with intent to kill him.
    Th.at on said charge, the said negro Sam Mitchell was arrested, on the 19th of the same month of September. That on fhe 24th day of same month, the said justice Anderson organized a court at his house, consisting of two justices and five freeholders, to try the said negro Sam capitally. That he was accordingly tried capitally by said court, one of the justices and four of the freeholders of which had not been summoned by warrant under the hand and seal of said justices: that on the' issue of not guilty, the witnesses were fully examined and coun sel heard on cadi side; the same pretended court retired, and returned that they had no jurisdiction of the case; the offence not being capital. That afterwards, on the 27th of the same month, .at'the same place, the said Justice, with Richard Har~ vin and John N. Carpenter, acting-as freeholders, proceeded to try, and actually did try the said negro Sam Mitchell, on the same charges, although neither the said Richard Harvin and John N. Carpenter had been summoned for that purpose by warrant under the hand and seal of said justice Anderson or any other justice; although the said. John N. Carpenter did not reside within the said county of Clarendon and held no free-Iiold in said county, in his own right, and although the said justice Anderson and Richard Harvin had made up and express, ed an opinion on the case, before the trial was gone into, by stating to the counsel in defence of the prisoner, that his efforts would avail nothing, as on the former trial of the prisoner for the same offence, they had heard the said counsel and he had not made an alteration of the opinion they had formed.
    Thai these several objections were raised, made and urged snthe said trial, against the court’s proceeding to the said trial, and were severally overruled. That the said pretended court-proceeded to the said trial, convicted the said negro Sam on said charges, and sentenced him to twelve months imprisonment; and on said sentence, the said negro Sam is now in confinement in.the goal of Sumter district. .
    The suggestion prays for a writ of probibitlon, to prohibit the said justice Anderson, John N. Carpenter and Richaixl Marvin from proceeding any farther in the enforcing the -sentence thus pronounced, and that they be compelled to release and revoke the said sentence and totally absolve the said negro man Sam Mitchell from the said sentence.
    The .answer of justice Anderson to the suggestion refers to a copy of the proceedings of the court for the particulars of the trial. He states that for the first trial he did summon a justice and freeholders, but they not attending, he was compelled to call on persons present and in fiis view, to serve on said court; and after this court, thus organized, decided they had no jurisdiction, h.e called in two freeholders of the • same, court, to proceed to the said trial; when the counsel for the prisoner objected to the court’s proceeding to the trial, and stated he was not- ready as Seme ef the witnesses were gone home¿ and the court upon this statement agreed to postpone the trial to the 27th of September: that said negro Sam was taken into custody on the 19th September, and the court organized on the 24-th, and as to any other matter or thing stated in the suggestion he demurs.
    He further saj s that after the conclusion of the evidence on the part of the prosecutor, and no evidence olfered in de-fence, he requested the counsel of the prisoner not unnecessarily to take up the time of the court, as he was satisfied with the evidence. There was a joinder in demurrer. John Carpenters answer to the suggestion refers to a copy of the proceedings made out by the justice, and he further says he does not reside in the county of Clarendon, but he conceives he is a freeholder in said county, inasmuch as his wife has a fcesimple estate of lands in the county. By the original entries of jusr tice Anderson, it appeared that the arrest was made on the 19th September, and the court was organized and, the first trial had. on the 24th September, and a new organization of an entire new court, on a charge of misdemenor, on the 27th September, when the conviction took place and sentence was pronounced. The presiding -judge refused the prohibition. An appeal was now made.
    1 st. Because the decision was against law and evidence.
    2d. That the ground for prohibition set forth in the sug-guestion were sustained by evidence contained in the answer of justice Anderson and John Carpenter, which went to shew that the court was not legally constituted and that they did not proceed in a lawful manner.
   The opinion of the Court was delivered by

Mr. Justice Colcock.

The 9th section of the act of assembly of 1740, directs that the “ magistrate shall commit any slave charged with the commission of any crime, and shall without delay, by warrant under his hand and seal, call to his assistance and request any one of the nearest justices of the peace to associate with him, and shall by the same warrant, sumirton such a number of the neighboring freeholders to assemble and meet together with such justices,” &c. This clause relates to offences of the higher grades. The next section relates to misdemeanors, and says that a slave so charged shall he proceeded against and' tried for such offence in the manner herein before directed; but by one magistrate and two freeholders of the county. Now it appears from the proceedings of the magistrate himself that the person who set in the court had not been summoned according to the provisions of the act. The case was then coram non judice. There was no jurisdiction in this court. In fact it was not a court, it was an assembly of unauthorized individuals, and the case comes within the principle decided in the case of the State, vs. Hudnal et. al. 2 Nott & M'Cord, p. 419: and it further appears thalJohn N. Carpenter was not of the county, and therefore not qualified to sit on the trial.

Levy, and Ml Willie,' for motions.

JpCayrant, contra.

It was suggested however, that as the court had passed sentence and the sentence was in part executed, the prohibition could not issue, for there was nothing to prohibit. This would be a most unfortunate state of things, for in most cases these inferior tribunals proceed, with such expedition that it is impossible to stay their progress before they give judgment and pronounce sentence. The proceeding by prohibition is intended to restrain these subordinate jurisdictions within their prescribed limits and to punish them when they exceed them; besides which, when their proceedings are declared to be illegal and-void, they are not only amenable to the court but also to the party injured. 5 Bacon, p. 648, 661; title prohibition. The motion is therefore granted, and it is ordered that a prohibition do issue.

Colcoch, Johnson, Hyger, Richardson, and Gantt, Justices* concurred.  