The opinion of the court was pronounced by
Collamer, J.— The first inquiry is, had the sheriff legal power to serve these original writs ? This is a question arising on the construction of our statutes, and little aid can be derived from abroad. By the judiciary act, (p. 64,) writs, where the sheriff and constable are parties or interested, are to be directed to, and served by, the high bailiff or a disinterested constable therein named ; and it is insisted on the one side that the sheriff and constable were both parties or interested. Though not prepared to subscribe to those decisions in Massachusetts which hold the corporators individually parties .to those suits against the corporations on which thp property of the individuals is liable to be taken, we cannot but see that the rated inhabitants of a town are interested in the suits against the town; and that this is a pecuniary interest, in the event of the suit. It is such an interest as excludes them as witnesses at common law. We cannot compute the amount of interest, but can only say, if interested, the sheriff could not serve the writ. It would clearly have been improper for such sheriff or constable to have made up the jury before the justice. Th.ere is no difference in the interest which should have excluded them in the one and not in the other case. Such a distinction was attempted in the case of Weston vs. Coulston, (1 Wm. Bla. Rep. 506,) and overruled by the court. It is insisted, however, that these were justice writs, and that the act defining powers of justices, sec. 9, (p. 126-7,) gives power to justices to direct their precepts to the sheriff or constable in all cases, and that this is not qualified by the judiciary act which is confined to the county and supreme courts. From such a view, it would follow that the sheriff and constable must serve all justices’ writs whatever. This view cannot be sustained. Wherever a general pow*52er is given to a justice of the peace, its exercise is to be considered as directed and qualified by all the provisions °f the judiciary act, which are not in their nature peculiar to the -powers and structure of the .county and supreme court, as the act, in its very title, is not only to establish a county and supreme court, but “ to regulate judicial proceedings.” Hence, though provided only in the judiciary act, as it is commonly called, the justice’s proceedings must be in the English language; his executions must be given out in thirty days to charge property or bail; an action may be maintained before him against one of two or more joint contractors, the-other being out of the state; he may chancer bonds, admit depositions, and admit special matter on the general issue on notice. So in this case the justice act only gives the general power to issue writs, but does not regulate how or by whom they shall be served. -For these we must refer to the act regulating judicial proceedings; and therefore, where the sheriff is a party, or interested, or dead, or imprisoned, the justice writ, like any other, should be directed to the high bailiff, and served accordingly. It is asked how then could a writ against a county be served ? Perhaps, ex necessitate fei, the sheriff might serve, but in the case before us the statute provides for the high bailiff or a disinterested constable, and it is therefore not a case left for judicial provision.
The next question is, if a writ is served by an interested sheriff, what is the mode of correction? Most undoubtedly it is matter of abatement, for it does not go to the merits of the case, nor to the jurisdiction of the court either over the subject matter or the parties.
In one of these cases there was a plea in abatement for this cause, which must prevail unless the same is objectionable for some of the special causes of demurrer, to which attention will now be given.
1st, It is said the plea has neither full nor half defence, beginning thus: “ The defendant comes and defends, &c. and prays judgment.” There is much nice and contradictory authority on this point, but it has here no importance. In England, the court took no proceedings until appearance, not even to enter default; nor did they ever give judgment until the defendant made defence. Here it is olh-*53erwise, and the occasion and law on that point here cease.
2d, It is said the plea begins by praying judgment of the writ, and should only conclude so. Bacon, indeed, lays down the rule that the plea should so begin only when the matter is apparent on the writ (4 Bacon, 50. — 3 Just. 30); but this is a distinction little attended to even in England.
3d, It is objected that the plea should give a better writ. . If the matter in abatement be such that the information for its correction be peculiarly within the command of the defendant, he must in this way communicate it, such as other parties who should be joined as defendant’s, misnomer or degree of the defendant, &c., otherwise, it is unnecessary. Such is the. practice. See plea by Judge Parsons, approved by Judge Story,* (Oliver’s Ed. Story’s Plea. 119.)
The court therefore decide the judgment in the case of Holmes- sustaining the plea in abatement be affirmed.
It is observable that these were cases within the jurisdiction of the justice court; the writs were-served by a. public officer of. general power, and all the proceedings regular on the face of them. The defect, was on a collateral fact. It'could not have been dismissed on motion as for a defect apparent of record. It was therefore proper for plea in abatement, disclosing the fact, and furnishing the plaintiff an opportunity to traverse that fact,- or reply matter in avoidance, such as consent of the defendant, &c. and the defendant had notice and opportunity to appear and plead. In the case Weston vs. Coulston, 1 Wm. Bla. R. 506, the court dismissed the proceedings as irregular where the sheriff served. a latitat, himself being a party. In Hart vs. Hawkins, 6 Mass. R. 399, and also in 5 Mass. R. 260, in Error, the. court said the proceedings were void where the constable served process in a real .action, and said the defendant need not have appeared and reversed the judgment, though they called it void.
From these cases, it is insisted that the justice’s judgment was void, and therefore the execution should be superseded by audita querela. But it is to be observed these were all cases apparent of the record. This is otherwise. In the Massachusetts cases, the officer was not of general *54power, and could serve no such process. This judgment was not void, as the justice had jurisdiction, and could not know, without plea, that there was any irregularity. There was no fraud in the plaintiff’s procuring judgment against defendant without notice, as he had notice; nor has the present plaintiff any defence which he, as defendant below, had not day and opportunity to make. This audita querela cannot be sustained.
Judgment reversed.
Judgment rendered that the complaint of the plaintiff is insufficient.
Mattocks, J., Dissented as to the case of Holmes, on the ground that the sheriff was not so interested as to prevent his serving the writ.