By JUDGE CRENSHAW
On consideration, we are satisfied that the act of 1814, is for the government of Justices issuing attachments returnable and triable before themselves, and that the proceedings in the present attachment were had under the act of 1807; the affidavit [232]*232an(l condition of the bond are in pursuance of the requi-of the last mentioned act. We are therefore of opinion that the Court below did not err in refusing to quash the proceedings.
any time before the jury had retired with the case, it was competent for the Court in its discretion to permit the plaintiff to withdraw his replication, and to demur to the plea. There was therefore no error committed by the Court below in allowing this to be done.
But the main question to be settled is, was the pica good in abatement, and should not judgment on demurrer have been for the defendant? The affirmative of this proposition is certainly true. In the case of Mantz v. Hendly,a it is said that a plea in abatement shews cause toe Court why the defendant should not be impleaded, or if impleaded, not in the present manner and form. It was also held in the same case, that though the writ ought to be quashed on motion, -for defects apparent on the face of the proceedings, yet they were pleadable in abatement. But if the abatable matter did not appear on the face of the proceedings, as in. this case, it should be presented by a plea in abatement. It was further determined, that a plea denying that the defendant was removing, &c., if sufficient-ly pleaded, would be a good plea in abatement to quash the writ of attachment. This is precisely the- case now under consideration, and from authority as well as on principle, the matter was well pleaded and judgment on demurrer should have been for the defendant. It will be readily seen, that the decision in the case of Mantz v. Hendly is in conflict with the decision in the case of Oncal vs. Owens, reported in 1st Haywood.b But as far as authority ought to govern, it is believed that the legal refutation of such men as Tucker, Roano and Fleming who then presided in the Supreme Court of Virginia, is entitled to more credit than that of the Judges who presided in the Courts of North Carolina when the case was there decided. We arc inclined to follow the Virginia decision, because we think it well supported by law, reason and justice.
A majority of us are therefore of opinion, that on this ground alone, the judgment must be reversed, and the cause remanded.
Judges Lipscomb and White, dissenting.
Judge Taylor, not sitting.
Note. This cause was argued at a previous term, and re-argued at the present term.
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