Whether a writ was made by a deputy sheriff in violation of s. 21, c. 216 of the General Laws, presents a question of fact, to be determined at the trial term.
FOSTER, J.
Section 21, c. 216, G. L., provides that "any writ * * * made by a deputy sheriff * * * for another person, shall be void." The object of the statute was to guard against abuses that might follow from allowing the same person to exercise the powers of a sheriff and an attorney at the same time. Osgood v. Norris, 21 N.H. 435; Smith v. Saxton, 6 Pick. 483; Clarke v. Lyman, 10 Pick. 45.
But the question before the referee in this case was, whether the plaintiff's writ was made by an attorney or by a deputy sheriff. There was evidence tending to show that Charles Butler, in writing the writ, acted as the agent or servant of his father. No exception was taken to any of the evidence; and the referee having decided the question of fact in favor of the plaintiff, there is no question of law in the case. Cummings v. Center Harbor, 57 N.H. 17.
Motion denied.
ALLEN, J., did not sit: the others concurred.