
    Clark v. Bray.
    Under the plea of non est factum, the defendant may give anything in evidence which goes to the avoidance of the bond. Also, a writ directed to the sheriff may be served by his general or special deputy.
    Tin? declaration was •— That on' the 29th day of April, A. D. 1786, tho defendant was indebted to the treasurer of this state, in a sum of more than £1,000 lawful money, for state taxes, in his hands to collect of the inhabitants of the town of Southington, which he was unable to settle and pay; for which the town was finally responsible, and the selectmen immediately liable; and that the defendant, in order to indemnify and save harmless said town, from' said arrear of taxes, did make and execute to the plaintiff a certain bond obligatory.— Here the bond is. recited at large, which appears to be in common form, for £1,000 to the plaintiff, as treasurer of said town, and his successors in office.— Then follows the condition, in these words:— “ That whereas I, the said Bray, am now indebted on the state treasurer’s warrants, for taxes against the town of Southington (of which, by said town, I was appointed collector for sundry years past) in considerable sums, to the amount, perhaps, of £1,000 or more, as may appear by the treasurer’s books.— Now, if said Bray shall faithfully collect the remainder due on said rate bills, and pay the same to the state treasurer in a reasonable time, or in any other way satisfy the state treasurer, so as to indemnify and save the town harmless from any demand in the premises — then this obligation to be void,” etc.- — -The declaration then alleges a nonperformance on the part of the defendant.
    Hnder the plea of non est factum, Mr. Trumbull and Mr. Edwards, moyed for leave to introduce evidence of duress.— They relied upon the statute of this state, for regulating pleas and pleadings, by which it is enacted — “ That the general issue of not guilty, nil débet, no wrong or disseisin, or any other general plea proper to the action, whereby the whole declaration is put upon proof, according to- the nature of the case, may be made by the defendant; under which general plea, the defendant shall have liberty, upon trial of the case, and such general issue, to give his title in evidence, or any other matter in his defense or justification, as the nature of the action may be; excepting only a discharge from the plaintiff, or his accord, or some other special matter, whereby the defendant, by the act of the plaintiff, is saved or acquitted from tlie plaintiff’s demand in tbe declaration.”
    Mr. Jadd and Mr. Root, opposed tbe motion.
    But,
   By the Court.

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: And 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.  