
    *Dennis and Shirts ads. Charles Ford.
    Where a deputy sheriff of the county of A. is sued in the county of B. for an act done in the course of liis official duly m the county of A. the court will, upon affidavit of this fact, change the venue from B. to A.
    
      Fwing, in behalf of the defendant, moved to change the venue in this cause from the county of Morris to the county of Sussex, and read an affidavit of Ezekiel Dennis, one of the defendants, stating that the cause of action (if any) arose wholly in the county of Sussex, and notin the'county of Morris or elsewhere, and that the deponent was, at the time of committing the supposed trespass for which this action was brought, one of the deputies of the. sheriff of the county of Sussex, and, acting as such, took and seized the goods and chattels upon which the trespass is alleged to have been committed, in the said county of Sussex, and in the possession of one John O. Ford, upon lands and premises occupied by him, by virtue t>f and in pursuance of the command of a writ of execution of fieri facias de bonis issued out of the Inferior Court of Common Pleas of the county of Sussex, aforesaid, at the suit of Frederick Shirts, the other defendant in this suit, and against the said John O. Ford; which this deponent expects to prove by. several witnesses, all pf whom reside in thecounty of Sussex.
    
      Drake
    
    opposed the motion, and read a counter affidavit stating, that the plaintiff and a number of material witnesses lived in Morris; that he believes he cannot have an impartial trial in Sussex, and that it was more convenient for him to have the cause tried in Morris, and cited 1 Term. Rep. 782, note, to shew that the court would rather consult the convenience of the plaintiff than of the defendant, in relation to the venue.
    
    
      Vanarsdale,
    
    on the same side. This is a transitory action, and the plaintiff has laid the venue in the county where he lives, and the court will not change it unless under very special circumstances. 1 South. '30, 363; 2 Ibid. 718. The circumstance of the defendant being deputy sheriff of Sussex, is not a sufficient reason to change the venue ; on the contrary, from the known influence which sheriffs and deputy sheriffs have in their own county, it strengthens the belief set forth in the affidavit of *tho plaintiff, that he cannot have, an impartial trial in that county. In England the rule is, that if the plaintiff undertakes to give material evidence in the county where the action is brought, the court will not change the venue. Here the plaintiff states, that he has material witnesses in the county of Morris, which is in substance the same thing ; there was no reason why the convenience of the defendant should be consulted any more than that of the plaintiff, and therefore the court ought not to change the venue.
    
    
      Lwing, in reply.
    The English rule, as to changing the venue, has been changed by the course of decisions growing out of the statute. Rev. Laws 453, see. 4. But,, according to either rule, the venue ought to be changed. The English rule was, “ that if the plaintiff bring a transitory action in any other county than that in which the cause of action arose, the defendant, upon application to the court founded upon an affidavit “ that the plaintiff’s cause of action (if any) arose in the county of B. and not in the county of A., or elsewhere out of the county of B.,” can have the venue changed to the county where the cause of action really arose. The plaintiff may, it is true, retain the venue in the county where ho has laid it. But how is he to do it? Not by an affidavit stating that ho haft material witnesses in that county, but by undertaking to give material evidence of some matter in issue arising in such county. 2 Arch. Rrac. 177. Here the plaintiff does not undertake to do this.
    But we are not to be governed by the English rule, for_ 1. We shew the court that this is an action of trespass, and that all the circumstances arose in the county of Sussex.
    2. That all the acts done by the defendant were done by him as a public officer of the county of Sussex. If the plaintiff may sue an officer for an act done in the discharge of his official duty, and may take him out of his own county, they may be subjected to great inconvenience. An officer might be sued in the county of Gape May for an act done in Sussex county, which ought not to be tolerated.
   Per Curiam.

We are of opinion that the venue must be changed; and principally upon the ground, that the defendant is a civil officer, and the act for which he is sued was done in the *performance of his duty as such, and it would be a great hardship to take him out of his county.

After this opinion of the court, Vanarsdale said, that since he addressed the court he had met with the case of Jones v. Pemberton, reported in 2 Halst. 350, which he thought would rule the present, and which he begged permission to read to the court, to shew that the venue should be changed.

Pwing. There is nothing in the case.read by the gentleman to induce the court to change the opinion which they unanimously gave this morning. That case is not at all in point; the ground relied upon by the counsel for the defendant in that case was, that an action for an escape was a local action, which the court denied. But the point upon which the court have decided our case was not taken in the case of Jones v. Pemberton.

Kirkpatrick, O. J.

The decision of that case was made pretty soon after the passage of the act. Pev. Laws 453; sec. 4. Chief Justice Kinsey was an excellent English lawyer, but he did not take as great a latitude in the construction of our statutes as the courts have since done; and since the intermediate decisions which have been made upon this subject, we should not consider that case as binding upon us.

Ford, J. The ease of Jones v. Pemberton was an action for an escape, which is a mere non-feasance; this is an action against a civil officer for doing a positive act. The case cited does not militate against this; it does not decide the point upon which our opinion was placed.

Rossell, J., said, he saw no reason to change the opinion thoy had given this morning.

Rule to change venue granted.*

*Note. — Seo 1 Coweris Hep. 196, where it is said — “That it is a general rule, that in actions arising ex delicto the venue will be changed to the county where the action arose, unless the plaintiff stipulate to give material evidence in the county where the venue is laid.”  