¶1We 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.
¶2After 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.
¶3Pwing. 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.
¶4The 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.
¶5Ford, 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.
¶6*245Rossell, J., said, he saw no reason to change the opinion thoy had given this morning.
¶7Rule to change venue granted.*
¶8*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.”