With respect to the admission df the officer to disprove the claim, that personal property had been tendered to him, we can see no valid objection to it. To render such an objection available, upon the ground of interest in the witness, it was incumbent upon the defendant to show such interest. This he failed to do.
It was proved, that, in all his proceedings, the officer acted under the directions of the plaintiff. If so, he could not be chargeable with any omission or neglect of duty. The case *100falls directly within the principles recently recognized by this court. Carrington v. Holabird, 17 Conn. R. 540.
It becomes, therefore,unnecessary to enquire how the objection would stand, if no such directions had been given.
2. In the next place, was the officer bound to levy upon personal property, provided he made demand of the debtor, and the latter refused or neglected to turn it out to him ?
This question, so far as the rights of the debtor are concerned, seems to have been settled, many years ago, by this court. Allen v. Gleason, 4 Day, 376.
In that case, Gleason, one of the defendants, had a warrant for the collection of a school tax against the plaintiff, arid having given due notice, and the tax not being paid, he arrested the plaintiff, and confined him in the common gaol. The plaintiff afterwards brought his action for a trespass and false imprisonment, and on the trial, offered to prove, that he had abundant personal property, within the knowledge of the collector,liable to be levied upon ; but it appeared, that the plaintiff had refused to turn it out, alleging that the tax was illegal.
The evidence offered was rejected, by the superior court; and that decision was afterwards sustained, by this court. It was then holden, that collectors of taxes must generally proceed in the same manner as officers having executions, and were bound to take personal property, if tendered, in preference to the body. But if the debtor, for whose benefit the rule exists, neglects to offer property, when demanded, he waives the privilege the law gives him, and the officer is excused, if he levy upon the body.
The phraseology of the statute, as it then existed, in relation to the levy of an execution upon the body of the debtor, was very similar, in its terms, to the present, authorizing a levy upon real estate. The rule applicable to the one, must therefore necessarily apply to the other.
By that decision, it was established, that the debtor, if he wished to protect his person, or his real estate, from being taken on execution, must, when demand was made of him, either pay the debt, or tender to the officer sufficient personal property. The right to have the latter applied in satisfaction of his debts, in preference to the former, is a privilege conferred upon him by the law, which he may waive at his pleasure.
The rule, thus established, has generally been regarded as *101the settled law of this state, since that decision was made. It has, to a considerable extent at least, become a rule of property, and consequently, ought not to be disturbed, unless by some act of the legislature. It is true, the law authorizing the person of the debtor to be taken, by virtue of a writ of execution, has, in most cases, been abolished, in this state. But that change does not a fleet the construction of the statute in relation to the duty of an officer to levy upon personal property.
We do not, however, intend to be understood as saying, that the officer is exonerated from that duty, provided the property is not turned out to him, when demanded of the debtor. The creditor has a right to require this of him. He is entitled to satisfaction of his debt, in money, if it can be obtained, rather than in real estate, at the appraisal of man. The former may be accomplished, by a levy upon personal property, which the law requires to be sold, and converted into money.
But if, as in this case, he direct the officer to take the real estate, he has no right to complain of an omission to levy on personal estate. On the other hand, the debtor is sufficiently protected, if an opportunity is given him to tender personal property. Thus the rights of all are secured.
A new trial, therefore, must be denied.
In this opinion the other Judges concurred.
New trial not to be granted.