It seems to be well settled that an action against a sheriff for neglect of duty is not local. The case of Seeley v. Birdsall (15 J. R. 267), was for a false return, for an affirmative act done by him, and was clearly within the statute. But the foundation of this action is an omission to do, and it is difficult to conceive how that can be regarded as coming within the statute which is confined by its terms to “any act done by such officer or person by virtue of his office.” (2 R. S. 353, § 28.)
The Supreme Court have, however, definitely settled the question. In Elliott v. Cronk (13 Wend. 35), Sutherland, J., holds that the statute does not apply to an action against a sheriff for not paying over money collected, and says, it applies to official affirmative acts of public officers. In Hopkins v. Haywood (Ibid, 265), the court declare that they have held the statute to be applicable only to affirmative acts, and not to mere omissions to discharge an official duty.
And in Fairchild v. Case (24 Wend. 383), they again decide that the statute is in terms confined to acts done by officers virtute officii, and does not extend to mere nonfeasance, such as a negligent escape.
The gist of this action, that is, as contained in the second count, and sustained by the evidence, is nonfeasance, and, under these cases, the venue is transitory, and the refusal at the circuit to discharge the jury was correct.
The other point made for the defendant is readily disposed of, by considering what the issue is which is sent down to be tried, namely, whether at the time that this action was brought, the defendant’s liability existed ? It surSly did, if it ever existed at all, and if it was ever afterward discharged, it is not on this state of pleadings that that discharge can be taken advantage of.
There must be judgment for the plaintiff.