
    Daniel French versus Jonathan Judkins.
    An officer, having an execution against A, seized the goods of B, who was an inhabitant of New Hampshire. It was held, that B might maintain his action against the officer in another county than that of the officer.
    The plaintiff, calling himself of Chester, in the county of Rocking ham, and state of New Hampshire, sued this action against the defendant, naming him of Monmouth, in the county of Kennebeck, declared against him in trespass for taking and carrying away one pair of oxen, the property of the plaintiff, and converting them to the defendant’s use, at jIpswich, in this county.
    The defendant pleads not guilty as to the force, &c.; and as to the residue of the trespass, he pleads in bar, that he was a constable in the town of Monmouth, in the county of Kennebeck, duly chosen and sworn; and that one Moses Joy, of Winthrop, in the same county, sued out of the Common Pleas for said county, a writ of execution in due form of law, against one Gould French, of said Monmouth, directed to the several sheriffs of the counties of Kennebeck, Lincoln, Hancock, and Cumberland, or either of their deputies, or the constable of the town of Monmouth, for 36 dollars 13 cents, which writ was delivered by the said Joy to the defendant, to be duly served and returned ; and afterwards, by virtue of the said writ, he took the said oxen, shown to him by the creditor as the property of the said Gould French, to satisfy the said execution, which he sold, after keeping and advertising them according to law, and applied the proceeds of the sale to satisfy the said execution, of which he made due return; which is the residue, &c., and traverses his being guilty in any other place than in Monmouth, and in due execution of his said office, &c.
    [ * 230 ] *To this plea in bar the plaintiff demurs generally, and , the defendant joins in demurrer.
    
      Banister, of counsel for the defendant,
    being called on by the Court to support his plea in bar, said he should contend that, the defendant being sued for an act done in the course of his office, the action was local in its nature, and ought to have been brought in the county where he dwells, and where the transaction took place ; and to maintain this position, he referred to the cases of Sands vs. Lane, 
       and Purset vs. Hutchings. 
      
    
    
      Story, for the plaintiff,
    cited the cases in the margin. 
    
    
      
      
        Cro. Eliz. 667.
    
    
      
      
        Ibid. 842.
    
    
      
       4 Mass. Rep. 501, Cleveland vs. Welsh. — 5 Mass. Rep. 94, Briggs vs. Nantucket Bank — 8 Edw. 3. 20. — 2 Rol. Abr. 598, pi. 3, 4. — Hob. 5, 76. — Cowp. 165. Mosiyr 
        vs. Fabrigas. — 1 Saund. 254, Craft vs. Boite. — Willes's Rep. 431, The Bailiffs, &c. of Litchfield vs. Slater. — 7 D. &. 583, The Mayor, &c. of London vs. Cole. 2 Saund. 5, Mcllor vs. Walker —Note 1, Cro. Eliz. 468, Bowyer’s Case. — Moor. 410 S. C.— Cro. Eliz. 261, Ford vs. Brooke
      
    
   By the Court.

The only question, since the bar is clearly insufficient, is whether the Court of Common Pleas for this county is ousted of its jurisdiction in this case. We are satisfied it is not. Had the action been by a party to the original suit, perhaps it would have been local. But of this we give no opinion. Here, however, a stranger to that suit complains of an injury. The action is, doubtless, transitory; for the plaintiff cannot be presumed to know whether the goods were taken under color of office or not.

Plea in bar adjudged bad.  