after stating the facts: The Code, §191 (2) provides that actions “ against a public officer or person especially appointed to execute his duties, for an act done by him by virtue of his office, or against a person who, by his command or in his aid, shall do anything touching the duties of such officer,” must be tried in the county where the cause, or some part thereof, arises. Section 195 provides that “if the county designated for that purpose in the summons and complaint be not the proper county, the action may, notwithstanding, be tried therein, unless the defendant, before the time of answering expires, demands, in writing, that the trial be had in the proper county,” etc. The allegations of the defendants, upon which they base their demand for a removal of the cause to Anson County for trial, are not denied, and must, therefore, be taken as true, and they are entitled, as a matter of right, to the removal under sections 191 (2) and 195 of The Code, unless they have lost that right by the failure to comply with the requirement of the latter section, or waived it by answering before demanding the removal.

It is well settled that where the Court has jurisdiction of the subject-matter of an action, and it is brought in the wrong county, the objection to the venue must be taken in apt time, or it will be deemed to have been waived. It must be taken not only “before the time of answering expires,” as required by section 195 of The Code, but it must be taken in limine and before answering to the merits. County Board of Education v. State Board of Education, 106 N. C., 81, and cases there cited.

Did the defendants, in the present case, take the objection to the venue in apt time, or did they waive their objection by answering to the merits before the demand in writing was made? By the order made at May Term the plaintiff was allowed thirty days to file his complaint, and the defendants were allowed thirty days thereafter to file their answer, and *628 these were to be filed “as of May Term.” The plaintiff filed his complaint on the 2d day of June; on the 24th day of June, before the time for answering had expired, and before their answer was filed, they filed their demand for removal, and gave notice thereof to the plaintiff, and in their answer, filed June 30th, they demand judgment “for removal of cause to Anson County.” The answer was filed June 80th as of May Term preceding, and the demand was filed the 24th, before the answer, and before the time of pleading had expired, and as the defendants, of course, could not file their answer till after the complaint was filed, though it was filed a,s of May Term, so, from the very nature of the case, they had the right to file their demand for removal, before answering, as they did, and as of May Term. The thirty days time to file the complaint, and thirty days thereafter to answer, must (fairly construed) mean that the defendants were to be allowed that time to make any defence or objection to the complaint which they might have done if there had been no extension of the time to file complaint and answer as of May Term. If this be not so, the defendants have lost a right without any fault or neglect of their own, and which they could not have prevented by any reasonable diligence or foresight.

We think that this case is clearly distinguishable from County Board of Education v. State Board of Education. In that case, it is true the motion to remove was made before the lapse of time allowed to answer had expired, but it was made after the answer was filed and the defendant had pleaded to the merits, and, besides, the demand was not in writing; in this case, while it is true the motion was not heard till the Fall Term, yet it was made in writing before the answer was filed, in fact, and before the time to answer expired, and, from the nature of the case, it must be considered as having been made as of May Term, before the answer was filed, and continued with the cause, and, to rebut *629 any presumption of waiver by answering within the time allowed. Not only is the demand made in writing and notice thereof given before the answer is filed, but, in the answer itself, the objection is insisted upon, and objection and demand for removal appearing in the answer, “ we might regard the answer in this case as such an application,” as was said in Rankin v. Allison, 64 N. C., 674.

The plaintiff “insisted that the action was brought against the defendants as individuals, and not as public officers, as appears from the complaint,” and this seems to have been the ground upon which his Honor denied the motion. This, we think, was an error, for, if made properly to appear, by affidavit or otherwise, that the defendants came within the provision of section 191 (2) of The Code, they were entitled to the order of removal, if demanded in apt time, which, under the-circumstances of this case, we think was done.

The record presents other interesting questions, as whether “ the Courts, being at all times open for the transaction of all business within their jurisdiction, except the trial of issues of fact, requiring a jury,” the defendants might not have had their demand heard and passed upon before the Pall Term, and whether it was not the duty of his Honor to find how the fact was, and determine upon the uncontro-verted affidavits of the defendants, whether they were not entitled to the removal under subsection 2 of section 195 of The Code, but, for the reasons given, we think the defendants were entitled to the order of removal, and we need not consider these questions.

Error.