
    Ebenezer Herring and Another versus Elnathan Polley.
    By the practice of the courts in this state, judgment is presumed to be entered on the last day of the term; unless on motion it be in fact entered previously, in which case the time is minuted; and the thirty days, during which goods and estate attached on mesne process are held, are to be reckoned accordingly,
    A creditor’s choosing an appraiser, and receiving seisin of lands upon execution, are sufficient evidence of his election to extend his execution upon real estate, although the sheriff does not certify such election.
    A judgment creditor may extend his execution upon real estate, although there may be sufficient personal estate to satisfy his execution, and notwithstanding he may have attached such personal estate on his original writ i 1 the same suit.
    If one of two judgment debtors elect an appraiser to appraise land belong ng to them both, or to him only, it is sufficient; otherwise if the land belong solely to the other debtor.
    Entry sur disseisin, in which the demandants count upon their own seisin of a messuage and eighteen acres of land in Harvard, in this county, within thirty years, and upon a disseisin by the defendant.
    Upon nul disseisin pleaded and joined, a trial was had at the last April term in this county, before Sedgwick, J., who * reports, that at the trial the demandants stated their
    title to depend upon a judgment of the Court of Common Pleas for the county of Worcester, rendered at December term, 1807, for 1440 dollars 54 cents damage, and 13 dollars S3 cents costs, upon which an execution issued on the fifth of January, 1808, and a return of a levy made upon the demanded premises on the eighth of the same January; and a copy of their original writ, showing an attachment, and on the eighth of July, 1807, of several tracts of land, besides including the demanded premises, togethei with a large amount in value of personal property.
    To the admission of this evidence the tenant objected; — That the execution was not levied within thirty days after final judg ment; — And that it did not appear from the officer’s return upon the execution, 1st. That the demandants elected to extend their execution upon the debtor’s real estate, or directed the same to be done ; — 2d. That the premises were not shown to the officer and appraisers, or either of them, by the creditors, or any attorney duly authorized to show the same, or to receive seisin and possession of the same ; — 3d. That it did not appear to which of the judgment debtors the estate extended upon belonged, so that it could not be known whether the actual owner of the land chose an appraiser ; — ,4th. That it did not appear that the officers set forth the premises by metes and bounds;—5th. That he did not deliver seisin tc either of the creditors, or to any person by them authorized to receive the same; — 6th. That it did not appear that the premises were levied upon for want of personal estate, to the acceptance of the creditors.
    The record of the judgment produced by the demandants was of a court holden on the Monday next preceding Ihe first Tuesday of December, being the thirtieth day of November, 1807; and by the minute-book of the Court of Common Pleas for that term, there was an appearance of an attorney for the defendants, and a default entered on the third day of the term; and the plaintiffs had three days’ attendance * allowed them in their bill of costs. At the end of the minutes of the term was this entry, — “ The Court adjourned without day, on the 10th day of December, A. D. 1807. Joseph Allen, Clerk.”
    Upon inspecting the return on the execution, the judge ruled that the same could not go in evidence, and directed a nonsuit to be entered, subject to the opinion of the whole Court, upon the attachment, judgment, and return upon the execution, all which were made part of the case.
    [The judgment referred to in the judge’s report was recovered by the present demandants against William Stearns and Solomon Stearns. — The officer’s return upon the execution issued thereon is as follows: — “ Worcester, ss. January 8th, 1808. I caused three disinterested and discreet men, being freeholders in said county, to be appointed, and chosen, and sworn, as the law directs, viz., A. B., chosen by creditor’s attorney, Thomas Weald, Esq.; C. D., chosen by William Stearns, one of the.debtors ; and E. I'., appointed by me for the third, — to appraise real estate shown to them to satisfy this execution; and they appraised the above described premises at the sum of, &c., to satisfy this execution and all fees; and after deducting fees and costs of levying, recording, &c., viz., the sum of, &c., there will remain the sum of, &c., to satisfy this execution in full. — Also I have given seisin and possession to the creditor’s attorney, viz., Thomas Weald, Esq., by delivering the same described premises to him, the said attorney. I do therefore return this precept fully satisfied.”]
    The cause was argued at this term upon the judge’s report by Bigelow for the demandants, and by «7. Prescott and Dana for the tenant.
    
      Bigelow
    
    moved for a new trial, alleging that the evidence offered by the demandants, and rejected by the judge, was sufficient to maintain their action. There was a regular attachment of the demanded premises at the suit of the demandants, a judgment duly rendered for them in that suit, *and an extent of an execution issued thereon. — The principal question is on the time of the extent, whether it was within thirty days from the date of the judgment, so that the previous attachment shall have holden the premises, and the claim of the tenant under a conveyance from the judgment debtor, made after the attachment and before the extent, be thereby barred. On this question the demandants contend that the thirty days are to be reckoned from the rising of the court at the close of the term. Until that time a defendant, who has been defaulted, has a right by statute, [1784, c. 28, <§> 7,] on payment of costs, to have the same day in court as if his default had not been recorded. Whenever, upon motion to the court, judgment is made up on a previous day, and execution is awarded, a minute of the fact is always made; and in such case the thirty days will commence from the day of entering up judgment. But nothing of this kind appears in the case referred to.
    To the objection, that it does not appear that the judgment creditors elected to extend their execution on the lands of their debtors, it is answered that their receiving seisin by their attorney is sufficient evidence of their election; and this fact furnishes an answer also to the second objection, that it is not certified that the premises were shown to the officer or appraisers. — It is agreed that it does not appear to which of the judgment debtors the premises belonged; and the natural presumption is, that they were held in common by the two. The fourth objection is, that the premises were not set off by metes and bounds. To this it is answered, that in the certificate of the appraisers, which precedes the officer’s return, the boundaries of the premises are described with great minuteness and accuracy, and the officer adopts the description, and makes it part of his return.—As to the fifth objection, Mr. Heald, to whom seisin was delivered, was the attorney of record to the creditors in the action, which is sufficient; but if a special authority for the purpose were necessary, it must *be presumed that he had it, since the sheriff recognized him as sufficiently authorized, and such special power, if produced at the levy, would not appear in the sheriff’s return of the execution. — The sixth objection is abundantly answered by the fact stated in it. Had there been personal estate wherewith the execution might have been satisfied, the creditors would certainly not entangle themselves with real estate subject to redemption for twelve months, with so much uncertainty of ever realizing their debt, when they could in a few days have realized the cash for the amount of their execution.
    
      Prescott and Dana.
    
    Judgments relate to the first, day of the term, unless from something on the record it appears that they cannot have that relation.  Now, there is nothing in the record in this case, that can carry the judgment farther forward in the term than the third day of it, when the default took place; and the execution was not extended until more than thirty days after that third day. — It does not sufficiently appear from the return of the officer, that the judgment debtors, whose land was taken, had an opportutunity to elect an appraiser. Certainly one of them only had such opportunity; and there is nothing in the return which show s that he was the owner of the land, upon which the levy was made. Nor upon a new trial could this objection be cured by parole evidence. — The title of the judgment creditor being derived wholly from the return of the sheriff, that return ought to contain a perfect description of the premises; and to reply upon a reference to the doings of the appraisers for such description would be too loose a practice to rest the title to real estate upon. — There was no evidence of Mr. Heald’s being the attorney of the creditors, authorized to receive seisin of the lands, except what arose from his commencing and managing their action in court, which we think implies no authority for such a purpose. Such authority ought to be under seal, and to be recorded, with the other proceedings, in order to make a complete title to the creditors. * The forms prescribed by the statute ought to be rigidly adhered to, or titles to real estate will become very uncertain. —• The statute of 1783, c. 57, <§> 2, authorizes the extending of an execution upon real estate only in cases where the creditor can find no personal estate to satisfy the execution; but here was a large amount of personal property secured by attachment, and which must have been in the hands of the officer at the time of the extent. It is difficult to account for this conduct of the creditors on any principles consistent with fairness, and not strongly implying a desire to oppress and entangle an unfortunate debtor.
    
      
       3 Burr. 1596, Swann vs. Broome,— Tidd’s Practice, 855 — 4 Co 7.
    
   The action standing continued nisi for advisement, the opinion of the Court was delivered at the following March term, in Suffolk, to the following effect, by

Parsons, C. J.

This action is entry sur disseisin, in which are demanded a messuage and eighteen acres of land in Harvard The demandants have counted upon their own seisin, and on a disseisin by the tenant, who pleaded the general issue nul disseisin; and on the trial of the issue, the judge rejected an execution of a judgment recovered by the demandants against William, Stearns and Solomon Stearns, which was offered in evidence to prove the demandant’s seisin, and ordered a nonsuit to be entered, subject to the opinion of the whole Court, without stating on what ground the evidence was rejected; but referring to the original attachment, the judgnient, and the return of the execution, as a part of his report.

The tenant has urged a variety of objections to taking off the nonsuit.— The first objection is, that although the lands, on which the execution was levied, were attached upon the original writ, yet the levy was not made within thirty days after judgment; and it is therefore void as to any bona fide conveyance, made by the debtor after the attachment and before the levy.

The judgment was rendered at a Court of Common Pleas * holden on the thirtieth day of November, 1807, and which adjourned without day on the tenth of December following. The defendant appeared by attorney, but was defaulted on the second day of December; and the levy was made on the eighth day of January, 1808. If the judgment be considered as entered on the first day of the term, or on the day when the defendant made default, the thirty days had expired before the levy; otherwise if the judgment be taken as entered on the last day of the term. — A judgment may be entered on motion during the term, in which case the time of entering it is minuted; but when no day is minuted when judgment is entered, by the ancient usage of this Court, and also of the Common Pleas, judgment is entered on the last day of the term, against the presumption of the common law. Formerly, on the last day of each term, an order was passed to enter judgment, where the party was entitled to judgment, and to continue all actions undetermined. But of late years this order has become a standing rule and practice of the Court.

As the levy was withir thirty days of the last day of the term, this objection cannot prevail, although a conveyance after the attachment, and before the levy, had been made. But as no such conveyance appears from the judge’s report, the levy ought to have been admitted in evidence, as being good against the debtors, and those holding under them by a conveyance after the levy, in the same manner as if no previous attachment had been made.

The second objection is, that it does not appear from the levy, that the creditors elected to extend their execution on the lands of the debtors. —This objection is not founded on fact; the creditors’ attorney having chosen one of the appraisers, and having received seisin from the sheriff. — Under this objection it was also said, that it does not appear that the lands levied on were shown to the officer or appraisers, or seisin received by any person duly authorized by the creditors. — But the sheriff certifies that Mr. Heald acted as their attorney ; and the claim of the creditors * to the land by virtue of the levy is a ratification of his acts as their attorney, if there had been no precedent authority given. Also the sheriff returns expressly, that he was their attorney; and there is no attempt to falsify the return.

Another objection is, that it does not appear that the lands were taken for want of personal estate of the debtors; and this objection is fortified by the return on the original writ of the attachment of personal estate of considerable value. — But, although there may have been sufficient personal property attached, which might have been seised on the execution ; yet the creditor may unquestionably elect to waive his attachment, and to levy on the lands of the debtor. He may doubt the debtor’s title to his goods, and may not incline to indemnify the officer, or to expose himself to a subsequent lawsuit. And the debtor ought not to complain of his own neglect to pay his just debt. Besides, the extent upon his lands will, ipso facto, discharge the attachment of his goods, so that he may at his own convenience raise the money by the sale of them, pay his debt, and take back his land. — This objection therefore is disallowed.

Another objection is, that the sheriff did not deliver seisin of the lands extended upon by metes and bounds. — This objection is not founded on fact. The land is described by courses and distances, the angular points being each distinguished by a stake and stones, or by reference to other boundaries.

The last objection made is, that it does not appear from the re turn, which of the debtors owned the land levied on. — As to a stranger, as the tenant in the present action appears to be, it is immaterial which of the debtors, or whether both of them, were seised of the land. An appraiser was appointed by William Stearns, one of the debtors. If both the debtors were seised of the land, an appointment of an appraiser by one of them was sufficient. If the debtors agreed in their appointment, then this appraiser was * appointed by both; if they disagreed, then the sheriff must have appointed ; and he might appoint a man chosen by either of the debtors. If William was the sole owner, then the choice of an appraiser was right, and Solomon, the other debtor, had no right to interfere. If the tenant in this action, on a trial of the issue, should not prove to be a stranger, but should derive his title from Solomon, as having been sole seised, he will not be bound by the levy ; and the seisin acquired by the demand-ants will be wrongful, and they cannot recover against him. But if his title be derived from William and Solomon, as seised together, or from William alone, he will be bound by the levy, and must fail, unless his title accrued before the attachment.

It is the opinion of the Court, that the nonsuit be set aside, and a new trial be granted.  