
    * Josiah Marshall versus Joseph Hosmer.
    When an action against a sheriff arises partly from matter of record, and partly from matter in pais in different counties, the plaintiff may bring his action in either county, at his election.
    This action was brought against the defendant, as sheriff of the county of Middlesex, for a supposed misfeasance of his deputy, in neglecting to attach the goods of one Kidder, upon a writ of attachment issued in favor of the plaintiff, returnable in the county of Suffolk, of which the plaintiff then was and still is an inhabitant.
    The defendant pleaded in abatement at the court below, “ And the said Hosmer comes and defends, &c., and says that the Court here ought not to have cognizance of the plea aforesaid, because he says that the said cause of action, if any, arose at Billerica, in the county of Middlesex, and not at said Boston, or elsewhere within trie said county of Suffolk, and that it lawfully appertains to the Court of Common Pleas, within and for the county of Middle-sex, and not to the Court here, to have jurisdiction, and to take cognizance of the plea aforesaid, and of the cause of action aforesaid, if any. And this he is ready to verify; wherefore he prays judgment if the Court here will have or hold further cognizance of the plea aforesaid,” &c., by Timothy Bigelow.
    
    To this plea the plaintiff demurred generally, and the defendant joined in the demurrer.
    The point was submitted to the Court without argument.
    
      Thurston, for the plaintiff.
   Curia.

This is a plea to the jurisdiction of the Court of Common Pleas, holden for the county of Suffolk. The sheriff is sued for the malfeasance of his deputy in the service of an original writ, which issued from the clerk’s office of the Court of Common Pleas in Suffolk, and which was returnable to that Court. It is difficult to suggest any foundation on which to rest this plea. It is true that some actions against the sheriff are local, and not transitory , but when the action arises partly from matter of record, and partly from matter in pais in different counties, the plaintiff may [ * 24 ] bring * his action in which of the counties he pleases.

The plea is, without question, bad, and the defendant must answer further, '&c.

Vide 1 Wils. 336, Griffith vs. Walker,—Cowper, 177.—Roll 37.—See also 2 Mass. Rep. 569, Foster vs. Baldwin . 
      
      
        [Pearce vs. Atwood, 13 Mass. 334.—French vs. Judkins, 7 Mass. 229.—Ed.)
     