
    
      M. E. Carn, Colonel 13th Reg't. vs. J. Jenkins Mikel.
    
    Court martial held 6th May, 1850, and defendant fined for neglect in the performance of militia duty: execution issued bearing date 19th May, 1851, and lodged with sheriff 21st May, 1851: — execution set aside because not issued within the proper time.
    Evans, J. thought such executions might be issued at any time within a year and a day: other Judges thought they should be issued at the expiration of thirty days from the adjournment of the Court, and not afterwards.
    
      
      Before Frost. J. at Chambers, Charleston, July 21, 1851.
    The report of his Honor, Judge Frost, is as follows.
    “By a battalion court martial held the 6th May, 1850, the defendant was fined for default in the performance of militia duty, and execution was issued for the recovery of the fine of defendant and others, bearing date the 19th May, 1851, and lodged with the sheriff the 21st May. This motion is made to set aside the execution, on the ground, that the execution was issued more than a year and a day after that on which the court was held.
    “ A writ of error will not lie to reverse the judgment of a court martial — (3 Mass. R. 305). Nor can a motion to set aside the execution (which is a substituted proceeding for a writ of error) be granted. The motion should have been for a writ of prohibition, but this objection is waived, and the motion will be decided on its merits, and as if it had been for a writ of prohibi- ■ tion.
    “The rules which regulate the proceedings in the Comt of Common Pleas, or other Court having common law jurisdiction, have no application to proceedings in a court martial. The latter is a special jurisdiction, created by statute, and reference must be had to the statute for the decision of all questions affecting the extent of its power and the forms of its proceeding. '
    “That an execution must be sued out within a year and a day after judgment, and renewed within a year and a day after its teste, and other rules prescribing the times for proceeding in a suit, apply in this State exclusively to the Court of Common Pleas. They have no relation to the proceedings of a court martial, nor can they by any analogy be extended to such proceedings. The Act of 1841, when it directs the Colonel to issue executions thirty days after the return of the proceedings of the court martial to him, only provides that executions shall not be issued before that time has expired. No limitation is imposed to the time beyond the thirty days when an execution may be issued. It is no objection then to the execution in this case that it was issued after the expiration of a year after the time when the court martial was held.
    “ The motion is refused.”
    The defendant appealed, on the following grounds:—
    1. That any execution from a court martial is contrary to mag-na charter and the constitution of this State and therefore void.
    2. That the execution in this case, not having been sued out within a year and a day after the fine was imposed, is void under the general policy of the law.
    3. That under the Act of 1841, which provides that the officer to whom the proceedings of the court martial shall be transmitted, shall forthwith lodge the same with the sheriff on the expiration of thirty days from the adjournment of the court, it was intended to limit the time when executions should issue from a court so irregular and despotic ; and that the sueing out an execution one year and thirteen days after the fine has been imposed, is not a sufficient compliance with the provision of the said Act.
    4. That if courts martial are not limited either by the general law or by the Act of 1841, as to the time when executions shall issue on their judgments, the liberty of the citizen might be in jeopardy'for twenty years, since their executions authorize conmitment to the common jail for their satisfaction.
    5. That the order of his Honor, Judge Fbost, is, in other respects, contrary to law.
    Pope, for appellant,
    cited 2d sect. 9th Art. Constitution; Act 1833, §30, 8 Stat. 573: Act 1841, §102, 11 Stat. 197; Lee vs. Giles, 1 Bail. 449.
    Cooper, contra,
    cited Act 1841, § 95,. 102; Deliesseline vs. Martindale, 2 Rice Dig. 240 ; 2 N. & McC. 410. The execution could not issue until thirty days after the adjournment of the court martial. It was issued within a year and a day from that time.
   The opinion of the Court was delivered by

Evans, J.

The question in this case is, whether the Colonel of the Regiment had the power to issue an execution at the end of one year and fifteen days after the fine had been imposed by the court martial. We are all of opinion there must be a period after which no proceeding can be had without notice to the party, but what that limitation is, is a question about which there is much diversity of opinion. The result which I am to pronounce is the judgment of the Court, but the particular reasons are my own.

The 102d section of the Act of 1841, (11 Stat. 197), is in these words : All fines and penalties prescribed by this Act, shall be imposed by Courts Martial; but no penalty shall be imposed after the expiration of twelve months from the committing the offence or making default; and upon judgment being had, the party shall be liable to-execution as in.civil cases.” The meaning of these latter words is what we are to decide. They do not apply to the form of the execution, for that is prescribed in sec. 97; nor do they apply to the mode of execution by the officer, or the person to whom directed, or to the time of return, for all these are regulated by sec. 95.

This section directs the approving officer, at the expiration of thirty days from the adjournment of the Court, to issue execution and to lodge the same forthwith with the Sheriff. It has been argued, and some of the members of the Court are of. that opinion, that no power is given to issue an execution afterwards; but this, I think, will be adhering too closely to the words, without a due regard to the meaning.

The Legislature did not, I should suppose, intend, if the officer who ordered the' Court, and to whom its proceedings are to be returned for approval, should die or resign, that no execution should issue after the thirty days. The more liberal interpretation seems to me to be, that the words are directory to the officer, and not a limitation of time after which no execution can issue. If, then, the execution may issue after thirty days, what is the period of limitation ? I do not think we can extend to these military executions the limitation of three years within which an •execution may issue on the judgment of the Court of Common Pleas ór a Magistrate. These are regulated by statute ; by the express words of which, they are restricted to the subject of the enactment.

But the common law limitation of a year and a day was general, and I have come to the conclusion that the words the party shall be liable to execution as in civil cases,” is, as to limitation, to be governed by the common law, and as the execution in this case was not issued within that time, it was irregular, and the motion should have been granted below.

The decision of the Circuit Judge is therefore reversed, and the motion in this Court is granted.

O’Neall, Wardlaw, Withers and Whitner, JJ. concurred.

Motion granted.  