2

4. Such notification must be served, by the sheriff, or his deputy, or a constable,' — upon the creditor, or if he be not in the Commonwealth, upon his attorney, or if neither be in the Commonwealth, it must be left with the clerk of the court, or the justice, by whom the execution was signed, thirty days before such intended caption.*

5

5. At the time and place appointed, the debtor must appear before two justices of the peace, both to be f the quorum, who examine him as to his property, and at which examination the creditor may appear and put questions. If the justices be satisfied, they admit him to take the oath, and furnish their own certificate thereof, in the forms prescribed by law, and the debtor is then discharged; otherwise he still remains in confinement.

6

Subsequent liability of debtor. After the debtor has been thus discharged, his body can never be again taken for the same debt; but his property is always liable for the amount of the original judgment, and also for the expenses, which the creditor has incurred, in maintaining him in prison.*

1 Stat. 1787. ch. 29. s. 1. Stat. 1811. ch. 85. s. 2.

2 Stat. 1787. ch. 29. s. 1.

3 Ibid. Stat. 1819. ch. 130.

4 Ibid.

Stat. 1817. ch. 186. s. 1.

Stat. 1816. ch. 55.

7 Ibid.

8 Stat. 1787. ch. 29. s. 4. Stat. 1819. ch. 94. s. 2. Stat. 1821. ch.

22. s. 4.

SECT. III. LEVY OF EXECUTION UPON REAL ESTATE.

Time of levying. If the estate, upon which it is intended to levy the execution, were attached upon the writ, the levy must be made within thirty days after judgment, or the attachment will be void. This time is fixed, merely as the limit, within which the creditor can preserve his lien upon the property originally attached; but if he do not wish to preserve it, or if no property were attached on the writ, he may levy his execution upon the debtor's estate, at any time while either his original execution, or any alias or pluries which he may take out, continues in force.

Mode of levying. Appointment of appraisers. When an officer has received an execution, with instructions to levy the same upon the real estate of the debtor, his first duty is, to cause three disinterested and discreet men, being freeholders in the county, to be selected, one to be chosen by the creditor or creditors, one by the debtor or debtors, whose land is to be taken, if they see cause, and a third by the officer: and in case the debtor neglect or refuse to choose, then the officer shall appoint one for him.2

If the inhabitants of a town, be a party to an execution, the appraisers cannot be chosen from such town.3

If an execution against two persons, be levied upon land, of which both are seized, an appointment of an

1 Stat. 1784. ch. 28. s. 11. By Stat. 1806. ch. 107. in Nantucket, this lien upon property attached, continues for sixty days after judgment. * Stat. 1783. ch. 57. s. 2

3 Boston v. Tileston, 11 Mass. Rep. 468.

appraiser, by either of them, is sufficient; but if the land be owned by one of them only, then he alone can appoint an appraiser, and an appointment by the other would vitiate the levy, as against any person claiming under the one who was seized.1

If a party to an execution, be a spendthrift under guardianship, the guardian may appoint an appraiser on his part.

2

If there be different parcels of land to be levied on, different appraisers may be appointed for each parcel.3

Oath of appraisers. The officer must then cause the appraisers so chosen,, to be sworn before a justice of the peace of the same county, faithfully and impartially to appraise such real estate, as shall be shewn to them.4

If the appraisers be justices of the peace, they may administer the oath to each other; or the judgmentdebtor, if a magistrate, may administer the oath to them, and for the same reason, it would seem, the creditor may do it.

5

It is not necessary that the magistrate, who administers the oath, should annex his certificate thereof, though it is often done; but the officer's return that they were duly sworn, will be sufficient.

Appraisement. The appraisers having been thus duly chosen and sworn, must all of them," go upon

7 Whitman v. Tyler et al. 8 Mass. Rep. 284.

the land shewn to them, or, at least, view it,' and appraise the same, to satisfy the execution, with all fees, and set out the estate by metes and bounds, if it be possible so to do."

If several parcels of land be shewn to the appraisers, they may appraise each parcel separately, or the whole at one estimate. But the former course is the most convenient.

And it is sufficient, if two of the appraisers agree in the appraisement, provided all of them be present and act.5

Certificate of appraisers. It is not essential, that the appraisers should certify their doings on the execution, though, in practice, they generally do so; -for the officer's return of their doings would be sufficient. But the practice of affixing their certificate, is a convenient one, and may correct an insufficiency in the officer's return."

Delivery of seizin. The officer must then deliver possession and seizin of the lands so appraised, to the creditor or his attorney. This is done by going on to the land with the creditor or his attorney, and by some formal act, delivering him seizin by virtue of the execution.

1 Tale et al. v. Anderson, 9 Mass. Rep. 92. Bott v. Burnell, 9 Mass. Rep. 96. Same v. Same, 11 Mass. Rep. 163. Bond v. Bond, 2 Pick. Rep. 382. Hammatt v. Bassett, 2 Pick. Rep. 564.

2 Stat. 1783. ch. 57. s. 2.

3 Ibid. s. 3.

* Barnard v. Fisher, 7 Mass. Rep. 71. Bond v. Bond, 2 Pick. Rep. 382.

Moffitt v. Jaquins et al. 2 Pick. Rep. 331.

• Williams v. Amory, 14 Mass. Rep. 20. 7 Stat. 1783. ch. 57. s. 2.

The attorney who receives seizin, need not have been appointed by deed, but the attorney of record in the suit, may receive it.' And if the seizin be delivered to any person, who undertakes to act for the creditor, a subsequent ratification on the part of the creditor, by any act, such as causing the execution to be recorded, will make the levy valid.2

The delivery of seizin to the creditor, must be made in a reasonable time after the levy. In one case, where it was delayed for a month, the court held the levy void.3

Officer's return of execution. After the foregoing proceedings have been had, the officer must make a return of the execution, with his doings thereon, to the clerk's office, whence it issued.*

The precise time, when this return must be made to the clerk's office, is not fixed by the statute, -but it is provided that the execution must be recorded in the registry of deeds, within three months after the levy. Accordingly it has been holden, that if the return day named in the execution, fall within the time allowed by law for the recording of the executions, the officer is bound to return it to the clerk's office on the return day, in order that the creditor may there find it, to have it recorded. But if the three months expire before the return day of the execution, the creditor must request the officer to return

1 Pratt et al. v. Putnam, 13 Mass. Rep. 361.

2 Ibid.

3 Waterhouse v. Waite, 11 Mass. Rep. 207. 4 Stat. 1783. ch. 57. s. 2.

Ibid.

6

Mc Gregor et al. v. Brown, 5 Pick. Rep. 170.