#### THOMAS CURTIS AND WATAUGA COUNTY v. MARSHALL MILLER.

The action for the penalty for fornication, under the act entitled, M Vice and Immorality,” must be brought within ten days after the commission of the of-fence.

Appeal from the judgment of a Justice of the Peace to the Superior Court of Watauga tried before his Honor Judge DiCK, at Spring Term, 1854, of that Court. Pleas, General Issue, Statute of Limitations, former judgment.

This was an action, originally brought against the defendant, and one Rhody Byers (with whom the act of fornication was alleged to have been committed) by warrant for the penalty of $2 50 each, under the act of Assembly entitled “ Nice and Immorality,” and a judgment being rendered by the magistrate, he alone appe'aled to the Superior Court, and upon the trial in the Superior Court, the defendant’s counsel contended that the suit could not be brought after ten days from the time the criminal act was committed, and asked his Honor so to charge the jury, who declined the instructions asked for, but told them that the action was well brought after ten days. To which the defendant’s counsel excepted. The jury found defendant guilty.

Rule for a venire de novo, for cause of exception above stated. Rule discharged, judgment and appeal.

Neal and T. R. Galdwell, for plaintiff.

Lenoir and G-aither, for defendant.

Pearson, J.

The warrant was for a penalty imposed for the offence of fornication, by the 119th chapter, section seventh, Revised Statutes, entitled “Vice and Immorality,” “if any persons commit fornication, upon due conviction, each of them shall forfeit and pay $2.50 for each and every such offence, to be recovered and applied to the same use as the fines in this act.” The defence was, that the information was not made within ten *554days after the commission of the offence. His Honor was of opinion that the information might be made after ten days. There is error.

It is admitted, that in regard to the use to which the penalty is to be applied, this section has reference to the previous sections ; but it is insisted, that there is no such reference in regard to the manner in which the penalty is to be recovered. We think it clear, that a reference is made to the previous sections, both in regard to the manner in which the penalty is to be recovered, and the use to which it is to be applied: if so, according to the 5th section, the information must be made within ten days after the offence is committed. Rut suppose there is no such reference in regard to the manner in which the penalty is to be recovered, then there is no provision made for the recovery of the penalty, and the plaintiff has no authority to sue for it as common informer: so,, quctcumque via, take it either way, he is not entitled to recover. There must be a venire de novo.

Judgment reversed.