Ex parte Lilly

• Decision Date: 30 June 1876
• Court: South Carolina Supreme Court
• Parties: Ex Parte LILLY.

7 S.C. 372

Ex Parte LILLY.

Supreme Court of South Carolina.

Jul. 1, 1876.

Where the term of a Circuit Court, as fixed by law, has expired, the Judge has no power, by order, to continue its existence, convene it at another time, and proceed to the trial of cases.

BEFORE MACKEY, J., AT CHESTER, JANUARY, 1876.

This case is stated in the opinion of the Court.^{FN a}

FNa. The names of the counsel have not been furnished.

The opinion of the Court was delivered by

MOSES, C. J.

By the eighteenth Section of the fourth Article of the Constitution, the Court of General Sessions is required “to sit in each County in the State at least three times in each year, at such stated times and places as the General Assembly may direct.” By “An Act to fix the time for the holding of the Circuit Courts in certain Counties herein mentioned,” (15 Stat. at Large, 324,) the Court of General Sessions for the County of Chester was directed to be held “at Chester on the first Monday of January, and on the third Monday of March and September, and the Court of Common Pleas at Chester, for the County of Chester, on the first Wednesday after the first Monday of January, and on the first Wednesday after the third Monday in March and September.” The term of the Circuit Court for the County of Chester which commenced on the first Monday of January, 1876, adjourned on Saturday, the eighth day of the same month, as appears by the following entry on the minutes: “Saturday, January 8, 1876, the Court then adjourned for the term, and directed the Clerk to enter in the journal that the Court adjourned from day to day, but without any date being fixed for its reassembling.” It further appears that on January 24, 1876, the following order was made by the Circuit Judge: “State of South Carolina, Chester County.-It is ordered that the Sheriff of Chester County do forthwith proceed to summon the grand and petit jurors to be and appear at the court house, in Chesterville, at 10 o'clock next Monday morning, the 31st instant, for the trial of John Lilly et al., charged with burglary and larceny, and of such other cases as may be brought before them pursuant to law.” By virtue of said order the jurors were summoned, appeared, and the Judge presiding, a Court legally organized, as was supposed, proceeded to what must have been regarded as the principal object for which it had convened.

A bill for grand larceny was presented to the persons who were said to constitute the grand jury against the said John Lilly, which, on being returned “true bill,” he was tried by the persons sitting as a petit jury, a verdict of guilty returned, on which he was sentenced and committed to the Penitentiary for the space of nine years. Being in custody of the Superintendent of that institution, he now is brought before us by a writ of habeas corpus, and claims a right to be discharged, because detained without lawful authority, his detention being, as he alleges, under the sentence of a Court, or a tribunal acting as such, without due power by law to control his person. In fact the whole proceeding, from the bill to his committal to his present custody, is challenged as void in law.

The term of the Circuit Court for Chester which commenced on the first Monday in January, 1876,...