Under tbis plea, tbe defendant may exhibit proof of anything which goes to tbe avoidance of the bond; for it is not within tbe exception of tbe statute.
It appeared in evidence •— That tbe treasurer of tbe state bad issued an execution against tbe defendant, for tbe arrear of state taxes, on the bills in bis bands, as collector for the town of Southington, directed to tbe sheriff of Hartford county only. Tbe sheriff deputed Simeon Newel, an inhabitant of Southington, to levy tbis execution. Newel, by virtue thereof, arrested Bray tbe defendant, and held him in custody, until be executed tbe bond in question.
Tbe defendant’s counsel made two points in tbe defense:—
1. That tbe treasurer’s execution, being directed to tbe sheriff only, without any mention of bis deputy, could not legally be served but by tbe sheriff in person; therefore, tbe arrest by Newel was illegal and void, and tbe bond obtained by unlawful compulsion, consequently not binding.
2. That if tbe sheriff bad a right to depute, tbe deputation in tbe present case was unlawful; for that Newel being an inhabitant of tbe town of Southington, was responsible to tbe treasurer, in case of Bray’s failure; and therefore stood in tbe situation of a creditor to Bray; and that tbe law never permits creditors to become their own bailiffs.
Tbe jury found a verdict for tbe defendant; on which tbe court unanimously delivered the following opinions:
By the common law of England, all writs directed to tbe sheriff may be executed by bis general or special deputy: *240And there is no diversity between the English and our law in that respect; the mode of return only is different. — What the sheriff does by his deputy is done by himself. If the writ be directed to the sheriff, it may be served by his general or special deputy, though they be not particularly described in the direction; and that, whether it be a writ of execution or mesne process. The power of the sheriff in either case, to depute, is incident to his office, and cannot be restrained, unless by positive statute.— See Bacon’s Abrid. 4 vol. tit. Sheriff; Cowper’s Reports, 403, 404, 407; 1 Black. Com. 116, 339; 1 Salk. 12, 95, 96; Holt’s Reports, 221; Hobart, 12, 13; Wood’s Inst. 74, 77, 78; 2 Black. Reports, 332.
In regard to the second point — It was undoubtedly the duty of the sheriff to depute a fit person; yet the same degree of interest will not disqualify a person for acting ministerially, as will for acting judicially. So remote, and minute an interest, as in the present case, did not disqualify Newel for this service. The taxes of every town are by law collectible by one of its own inhabitants; and the treasurer’s warrant to the sheriff is good against the collector of his own town, where he has the same interest as Newel had in this case. The service of the execution, therefore, in either point of view, was legal, and there was not duress to avoid the bond.