
    John Barnard versus Lewis Fisher.
    Where justices of the peace happen to be appraisers of lands, upon which execution is about to be extended, they may administer the oath to each other.
    Or the oath may be administered by the j'udgment debtor, if he be a justice of the peace.
    In the levying of an execution upon three several tracts of land belonging to the debtor, it is not necessary to make a several appraisement of each.
    Where appraisers of land levied upon deducted from its actual value the supposed amount of an encumbrance from a previous attachment, at the suit of another creditor, in which judgment was not rendered, their proceedings were held to be irregular and void.
    Where such a prior attachment exists, the second attaching creditor should delay his proceedings in court, until the suit, on which the first attachment was made, be determined.
    This was a writ of entry sur disseisin, in which the demandant counts on his own seisin within one year, and on a disseisin by the tenant, of four several parcels of land.
    
      The action was tried upon the general issue, before Sewall, J„, at the last March term in this county, and a verdict taken for the demandant, subject to the opinion of the Court, upon the report of the judge who sat in the trial, it being agreed that the verdict may be amended, or set aside, according to the opinion of the Court.
    From the report of the judge it appears that several parcels of land, described in the writ, were duly appraised and set off, to satisfy an execution, which regularly issued *on a [ * 72 ] judgment recovered by the demandant against John Whiting and John Fairbanks, at the Supreme Judicial Court in Suffolk, in July, 1809, by adjournment from the preceding March term. The land thus levied upon was the property of Whiting, one of the judgment debtors, and had been attached upon the demandant’s original writ, and the levy was made within thirty days after the rendition of judgment.
    The tenant’s title was also under the levy of an execution upon the same lands, which execution issued on a judgment recovered by him against the said Whiting alone, at the Court of Common Pleas for this county, in April, 1808; and the land levied upon was attached, by the original writ, one day previous to the attachment made by the present demandant in his suit, and the levy was seasonably made.
    Several objections were taken at the trial to this last levy, some of which being considered by the judge fatal to the tenant’s title, the execution, and the proceedings thereon by the appraisers, and the return of the sheriff, were not admitted in evidence to the jury , and the cause came before the Court upon a motion for a new trial on the part of the tenant, on the ground that the judge improperly refused to admit the same in evidence.
    The exceptions to the levy, under which the tenant claimed to hold the lands, as reported by the judge, were, that the appraisers were not duly sworn ; and this because it appears that two of them were sworn before the third, he being a justice of the peace for the county of Norfolk, and duly qualified to administer the oath, unless his being an appraiser disqualified him; that this third appraiser was himself sworn by Whiting, the judgment debtor, he also being a justice of the peace, and duly qualified to administer the oath, unless disqualified by his being the judgment debtor, whose lands were to be appraised ; that the statute of 1783, c. 57, <§> 2, requires that all the appraisers shall be sworn before one of the justices of the peace for the same county, whereas the appraisers in that case were sworn before two several justices.
    * Another objection arises from the proceedings of the [ * 73 j appraisers, they having appraised three of the lots of land levied upon at a sum in gross, without having specified the value of each lot; and having also appraised the same three lots as “ subject to the encumbrance of William Cochran’s attachment, judgment not recovered.”
    The cause being continued nisi, came on to be argued at the last March term in Suffolk, when T. Williams, of counsel for the demandant, enforced the exceptions taken at the trial, and in support of that to the swearing of the two appraisers by the third, referred to the case of Drew vs. Canady as analogous; but his principal reliance appeared to be upon the last objection, relating to the mode of appraisement.
    
      J. Richardson, for the tenant,
    considered that the objections to the swearing of the appraisers, as also the first part of the objection to the appraisement, were of no great weight; but he was apprehensive that the last objection, made to the manner of the appraise ment, could not easily be got over, and that as to the parcels of the land demanded, to which this objection applied, the demandant must prevail.
    Afterwards, at the same term, the opinion of the Court was delivered by
    
      
      
        1 Mass. Rep. 158
    
   Parker, J.

With respect to the objections taken at the trial, which relate to the swearing of the appraisers, we are all of opinion that they do not avail against the levy, so as to render it void.

The terms of the statute, relied on to support the third exception, can be construed to mean nothing more than that any justice of the peace, within the county, may administer the oath; and the practice adopted in this case, of administering the oath by one of the appraisers, who happens to be a magistrate, and he, either before or afterwards, taking the oath before some other magistrate, has prevailed very generally, and may often be convenient. We certainly see no legal objection to it.

[ * 74 ] * The case of Drew vs. Canady, cited at the bar to support this objection, differs widely from the case under consideration. The principle, on which that decision rests, is that a referee should not, by any act of his own in another capacity, give himself a jurisdiction in a cause, which he is to hear and determine. The acknowledgment of the parties to a submission before a justice of the peace is essential to the jurisdiction of the referees. But appraisers derive their authority from the appointment of the sheriff, according to the provisions of the statute. The oath does not give them authority, but qualifies them for executing it.

As to the objection, that the judgment debtor administered the oath to one of the appraisers, we are also of opinion that this does not make void the levy. The counsel for the demandant has argued that he, being interested, is not a proper certifying officer of the fact, that the appraisers were sworn. It is a sufficient answer to the objection, that the return of the sheriff is the proper evidence that the appraisers were sworn ; and it has been decided, we think correctly, that although there should be no certificate from the magistrate who swore the appraisers; yet if it appeared, by the return of the sheriff, that they were duly sworn, the levy would be val’d, if there were no other objection to it.

The other objection respects the proceedings of the appraisers As to the first branch of this objection, that three separate parcels of the land levied upon were appraised by one estimate, without specifying the separate value of each parcel; since all the several lots of land were taken as Whiting's sole property, and as it is at least doubtful whether he could redeem one lot without redeeming .he whole which was set off upon the execution, we are not prepared to say that it was necessary to make a separate appraisement of each lot.

But it is not necessary to determine this question; for, with respect to the three lots of land so appraised, we are all of opinion that, for another cause, the levy is void. This cause is contained in the last branch of the exception to the * pro- [ * 75 ] ceedings of the appraisers, viz. that the appraisers deducted from the value of the land the supposed amount of an encum brance; which encumbrance was an attachment in a suit pending at the time of the levy.

The consequences of establishing such a proceeding by our decision would be exceedingly mischievous.

A suit pending may be discharged in various ways, without ever coming to judgment. The plaintiff in the suit may fail of proving his demand on trial, may become nonsuit or discontinue; or, if he should finally prevail, his damages are uncertain until judgment is rendered. And even after judgment, the debtor may satisfy it without an execution being sued; or the creditor may seize other property upon his execution ; or he may take the person of his debtor; or may neglect to levy his execution • upon the land attached, until he has lost his lien by the expiration of thirty days after judgment. In all which cases the land is free for the second attaching creditor, without any diminution of its value by reason of any prior attachment.

Now, amidst all these uncertainties, to value an attachment on an undetermined suit, as an encumbrance upon the land, would be palpably absurd. If the appraisers conjecture the value,—and they can do little more,—it follows that the land will not be justly appraised; and it might well happen, if such were the law, that the creditor, who causes his execution to be levied on land so circumstanced, having the conjectural value of such an encumbrance deducted, might obtain a title to the land of his debtor for a sum beyond all proportion less than its known value, and thus, instead of having his debt satisfied, which is all that the law contemplates, may profitably speculate upon the misfortunes of his debtor; who may be unable, without great sacrifices, to redeem his estate within the time limited by law.

For these reasons the Court are unanimous in opinion,,that the proceedings of the appraisers, with respect to the three first described lots of land, were irregular and void. And the [ * 76 ] verdict must be established, and judgment rendered * accordingly in favor of the demandant for that part of the land demanded. And as no sufficient objection appears to the levy upon the remaining lot, the verdict must be altered, so that the tenant may continue to hold that lot against the demandant.

To prevent difficulties of this serious nature in future, it may be proper to observe, that when land is attached, and it is known that there has been a previous attachment upon it, the practice has been for the second attaching creditor to delay his proceedings in court, until the suit, on which the prior attachment was made, is concluded. So that if there should be a levy by the first creditor, the second may take whatever is left; or, if the whole should be taken, he may look to other property for the satisfaction of his judgment; or, if there should be no levy by the first creditor, he may then have all the land to levy upon. The only inconvenience of this practice is the delay, which a creditor thus situated may submit to or not, according to his opinion of the ability of the debtor to discharge the debt from other property than that which is thus attached.  