Killian v. Fulbright, 25 N.C. 9, 3 Ired. 9 (1842)

Dec. 1842 · Supreme Court of North Carolina

25 N.C. 9, 3 Ired. 9

ANDREW W. KILLIAN vs. ANDREW FULBRIGHT and others.

December 1842.

An objection to the jurisdiction of the court in a penal action, because the action wag not brought in the county where the offence was com-milted, must be brought forward by plea in abatement, and cannot be taken on the general issue.

The case of Green v. Mangum, 3 Murph. 39, cited and approved.

This was an aetion on the case, brought in Macon Superior Court of Law, and tried at the Fall Term, 1842, of the Superior Court of Cherokee county, before his Honor Judge Pearson. The action was brought under the Statute in relation to the removal of debtors, Rev. Stat. c. 50, s. 9, and the plaintiff declared that the defendant, with an intent to hinder, delay or defraud his creditors, aided and assisted in removing one who was a debtor of the plaintiff out of the county of Lincoln. The defendant pleaded the general issue. The court, on the trial, intimat-an opinion that the Statute, upon which the action was was a penal Statute; that the action was therefore local, and could only be sustained in Lincoln county. The facts were then agreed upon by the Counsel: At the time of the removal, the plaintiff, the defendants and the debtor, all resided in Lincoln county, and the defendants still reside there. The plaintiff, after the cause of action arose, removed to Macon county, and there commenced this action. He afterwards removed to Cherokee county, and the case was regularly transferred to the latter county, under the provisions of the Act of Assembly. The plaintiff, upon the intimation of the opinion of the court, submitted to a non-suit, and appealed to the Supreme Court.

Clingman and Francis for the plaintiff.

Woodfin for the defendant.

Gaston, J.

Admitting that the action in this case is to be regarded as a penal action, the nonsuit was, nevertheless, improperly ordered. It was decided in the case of Green v Mangum, 3 Murph. 39, that the objection taken to the jurisdiction of the court, because the action was not brought in the county where the offence was committed, must be brought forward by plea in abatement, and could not be taken on the general issue.

The judgment of nonsuit must be reversed with costs, and a venire de novo awarded.

JPer Curiam. Judgment reversed.