
    Hutton against Blaine.
    In Error.
    ERROR to the Common Pleas of Cumberland county.
    ' Blaine, the plaintiff below, brought an action of trespass vi * el armis against Hutton for taking and carrying away his l goods, &c. The defendant, justified as a constable, under a* warrant directed to him- by Captain John Underwood, presi- f dent of a regimental court martial of militia. It appeared by ] the defendant’s evidence, that a regimental court martial was j convened by order of Charles Bovard, -lieutenant colonel of the 12th regiment of Pennsylvania militia. The Court was ‘ composed of five officers, one of whom was a major. Hav-’ ing chosen their president and judge advocate, they were alls sworn according to law, and proceeded to the trial of the • plaintiff, who was a captain. He was charged with several ¡ offences, one of which was disobedience of orders in leaving, the parade before being dismissed. The plaintiff was called,’! and refused to appear and answer, protesting against the au-‘ thority and jurisdiction of the Court. Whereupon the judge: advocate entered the plea of not guilty for him, and then the; witnesses on behalf of the prosecution were examined. The plaintiff produced no witnesses, but was present during the examination of the witnesses for the prosecution, and made some acknowledgments of facts, and alleged some things in his own justification. He was convicted of the charge of disobedience of orders in leaving the parade, as well as of some other charges, and sentenced “ to be degraded; and more- “ over to be rendered ineligible to any office in the militia of “ this commonwealth, or in any corps thereof, during the “ space and term of four years, and six calendar months, “ from the date of the sentence, (17th June, 1803); and fur- “ ther to pay a fine of 50 dollars.” : ; : 1 , : ’ ? :
    The Governor approved of this sentence, so far as respected the fine, and disapproved the residue thereof. On the 31st August, 1803, the president of the court martial issued his warrant to the defendant, reciting the sentence, and commanding him to levy, collect, and pay over the said fine of 50 dollars. Upon this evidence the Court of Common Pleas of Cumberland county gave their opinion to the jury, that the defendant had not made out a justification, and that the plaintiff was entitled to recover: to which opinion the defendant excepted.
    
      * l f ] j If a court martial is authorised to fine or degrade, and does both, and the Governor approve the fine and disapprove the rest, the sentence is good for the fine.
    ‘ • ¡ The president of a court martial, who issues a warrant, is responsible for gross impropriety in the proceedings. But the constable who 'executes it, is justified, if the court lias jurisdiction, is constituted according to law, and has : passed a law- ; iul sentence.
    Theconsta- : ble is not put to proof that 1 five of the , members agreed, : though the law requires ’ it, if it appear ? on the proceedings that : the court passed sentence.
    
      On the trial, a bill of exceptions was taken by the defendant to the rejection by the Court of certain parol testimony offered by him : but on the argument in this Court, these exceptions were given up by the defendant.
    The militia law of the 6th April, 1802, (6 Car. & Bio. edit*, of the Laws, 294,) under which these proceedings took place, contains the following provisions. Sect. 19. The president of the court martial shall, in ten days after sentence, issue a warrant under hand and seal directed to some constable, commanding him to levy the fine: the constable, under a penalty of 20 dollars, shall demand payment of the fine and five per cent, for his trouble: and in case7of non-payment the constable is to collect the same as in cases of execution: and if the constable shall not pay the same, in thirty days after the receipt of the warrant, to the paymaster of the regiment or other person entitled to receive the same, by the provisions of the act, he shall forfeit and pay double the amount of the fine for the use of the regiment.
    
      Sect. 31. Art. 1. A commissioned officer misbehaving or demeaning himself in an unofficerlike manner, while the regiment, troop, battalion, or company, to which he belongs, is paraded under arms, or neglecting or refusing to obey the commands of his superior officer, shall be cashiered or punished by fine, at the discretion of a general or regimental court martial,-as the case may require, in any sum not exceeding 60 dollars.
    
      Art. 6. A regimental court martial is to be composed of five members, all commissioned officers; who are to choose one of their members a president.
    
      Art. 7. In any court martial not less than two-thirds of the members must agree in every sentence inflicting punishment; otherwise, the person charged shall be acquitted.
    
      Art. 8. Members of a court martial are to take an oath or affirmation, which the president is required to administer, “ that they will give judgment with impartiality.”
    
      Art. 10. The person charged is to be served with a copy of the charge exhibited against him, at least ten days before the trial.
    
      
      Art. 12. Persons thinking themselves aggrieved by their captain or other superior officer in the regiment, troop, or' company, to which they belong, may complain to the commanding officer of the regiment, who shall summon a regimental court martial for doing justice according to the nature of the case.
    
      Art. 13. No penalty shall be inflicted by a court martial other than degrading, cashiering, or fining.
    
      Sect. 38. Suits commenced against any person for any thing done in pursuance of this act, shall be brought in the county where the cause of action arose, and not elsewhere. In case of a verdict for the defendant, or judgment for him on demurrer, or of nonsuit or discontinuance by the plaintiff, the defendant shall recover treble costs.
    
    
      Metzgar, for the plaintiff in error,
    contended, that the Court below were mistaken in their opinion, that the defendaftt had not made out a justification. The power of fine and imprisonment makes a court of record. The court martial was a court of record, and what appears on the face of their proceedings cannot be contradicted. The constable was justified in obeying the warrant. Where the Court has jurisdiction the officer is justified in executing its process, without regard to the regularity of its proceedings. Warren v. Shed,
      
       9 Johns. 229. Hecker v. Jarret,
      
       2 Johns. Ca. 51. 6 Bac. Ab. 166. Sheriff. 1 Esp. N. P. 274. 284. Part 2d, (N. Y. edit.) 1 Caines, 92.
    
      Watts and Duncan, contra.
    1. This is not such a Court as that its proceedings are prima facie regular. The jurisdiction must be proved. It is a limited jurisdiction both as to persons and things. The Court cannot be convened without an order from the commanding officer of the regiment. Here fio order appears: it is only said in the proceedings, that they were called by order of Colonel Bovard. 2. The party was not before the Court in the manner prescribed by law. No previous charge was made : which is necessary to constitute a Court. The charges were not served on Captain Blaine ten days before the Court, as the act requires. They are also exhibited too generally. The sentence is illegal: the Court might degrade or fine: but cannot do both, as they have done: and it is illegally added, that he shall not be eligible to any military office for four years. It should also appear by the sentence, that two-thirds of the Court agreed. They cited Perkin v. Proctor,
      
       7 Johns. 96. 2 Binn. 215. Nichols v. Walker.
      
       Mostyn v. Fabrigas.
    
    
      Reply. Every substantial part of the act has been complied with. The parties appeared before the court martial, and thereby cured every defect in the summons, supposing it not to have been ten days before the trial. Although the court was summoned three days before the trial, the arrest and the charges were ten days before.
    
      
       10 Johns. 138.
    
    
      
       3 Binn. 410.
    
    
      
       2 Wils. 384.
    
    
      
      
        Cro. Car. 394.
    
    
      
      
         Cowp. 180.
    
   Tilghman C. J.

(After stating the case.) It is said, on behalf of the defendant in error, that the court martial had no jurisdiction, and its proceedings were irregularly conducted : that the charges exhibited against the defendant were too general: that a copy of these charges ought to have been served on him ten days before the meeting of the court: that it ought to appear on the face of the proceedings that two-thirds of the members concurred in the sentence: and that the sentence itself was illegal, inasmuch as the court had power to fine or degrade at their discretion, but not to do both. The last objection is removed by the act of the Governor, who approved of the fine, and disapproved of the rest, so that the sentence stands for the fine only. The jurisdiction of the court was derived from the militia act, passed 6th April, 1802. By that act, the neglecting, or refuging to obey the orders of a superior officer, is an offence for which the delinquent may be cashiered or fined at the discretion of a general or regimental court martial as the case may require. There appears to be nothing in this case which was not cognizable by a regimental court; so that I see no reason for doubting of the court’s jurisdiction. Want of jurisdiction would have been fatal to all their proceedings ; and however hard it might be on the constable, he would, in that case, have been liable to an action for serving their process. It is incumbent likewise on the constable to shew, that the court has been constituted according to law, which has been done. •The law requires, that the court shall be composed of five members, all commissioned officers. There was evidence that it consisted of five members, and their commissions were produced. It is necessary, also, that two-thirds of the members should agree in the sentence: but I do not apprehend that the constable is put'to the proof of such agreement. It appears on their proceedings, that the court passed sentence. This is the usual form of judgment, and the constable has a right to presume that the proper number agreed. There is a difference between an action against the president of the court who issued the warrant and one against the officer who served it. The former might be responsible for gross impropriety in the proceedings. But the latter stands justified, if the court had jurisdiction, and was constituted according to law. The act of assembly authorises the president to issue his warrant to a constable, commanding him to levy the fine, and the constable is to execute it, under the penalty of forfeiting double the amount of the fine, if he does not collect and pay the same to the person entitled to receive it, in thirty days after the receipt of the warrant. He acts under no greater responsibility than if a warrant had been issued by a justice of the peace in an action of debt: and in that case the only question Would be, whether the person who issued the warrant was a justice and had jurisdiction. In Hill v. Bateman, 1 Strange, 710, it was determined, by Lord Chief Justice Raymond, that if a justice of the peace, having jurisdiction, issues a warrant illegally, he is liable to an action: but the constable who executes the warrant is justified, because the justice had jurisdiction of the case. It would be too much to expect from ministerial officers, that they should be so learned in the law as to judge of the regularity of judicial proceedings. Accordingly the law, which has its foundations in reason and sound understanding, has not required it of them. It is of no importance, therefore, whether ór not the charges against Captain Blaine were exhibited in proper form or served on him ten days before the meeting of the court. These were matters with which the defendant had no concern. He saw, that the court was lawfully constituted: that it had jurisdiction of the offence, and had passed a lawful sentence. That was enough for him. He had no other duty than to obey. Iam of opinion, that upon the evidence he stood justified, and the jury should have been charged to find in his favour.

There was also a bill of exceptions to the Court’s opinion, on the rejection of some parol evidence offered by the defendant. On this I have nothing to say, as it was given up by tho counsel for the defendant.

The judgment of the Court of Common Pleas is to be reversed, and a venire de novo awarded!

Yeates J. absent.

Brackenridge J. concurred-.

Judgment reversed, and a venire facias de novo awarded.  