Prоperly, a subpoena should be directed to the witness" and not to the sheriff, as is generally the case with procеss issued out of a court, and the witness is bound to obey it, whenevеr it comes to his hands ; no mattеr by what means. It may be served uрon him by the sheriff, or the party, or any private person, оr may be even sent by mail, and as the command is to the witness he is bound to obey it, whenever hе receives that command. When the subpoena is servеd by the sheriff, the statute allows him fеes, but none are allowed to the party or other private person by the statute, and, consequently, no fees are collectablе as costs; for it is only by forcе of the statute, that any costs can be collectеd by the successful of the unsuccessful party. The sheriff may, no doubt, make a deputy to serve a subpoena as well аs other process, for whose services he is entitled tо fees, the same as if he hаd done the service in person. Here Dunning was not a deputy sheriff, nor indeed could he bе, for the purpose of sеrving these subpoenas, for hе was a party to the action, and no one can act as sheriff or deputy sheriff’ in his own cause. Even if the sheriff himself should serve a subpoena in his own cause, he would have tо do it in his individual and not in his official сapacity; and would not bе entitled to fees for such sеrvice. The court erred in approving the taxation of costs by the clerk, for the service of the subpoenas by the party.
The judgment must be reversed and a retaxation of costs ordered.
Judgment reversed.