
    James Barrett versus Aaron Porter.
    Where it appeared, on the return of an extent of an execution on land, that three appraisers were appointed and sworn, and that all the three had acted in the appraisement, although the certificate was subscribed by two only, and no reason given why the third did not subscribe, it was holden, that the return might be sustained, 
    
    Where, at the time of the conveyance of land, a part of it was under attachment at the suit of a creditor of the grantor, and afterwards execution in the same suit was extended thereon, this was holden to be an encumbrance within the covenant in the deed, that the title was free from encumbrances. The extent was holden to be an eviction; and the appraised value of the land extended upon was made the measure of damages.
    In covenant broken, on a conveyance of land with a covenant that the premises granted were free of encumbrances, it was agreed that, prior to the conveyance, a creditor of the grantor had attached the same land on mesne process, and after the conveyance had extended his execution on a part thereof.
    
      Mellen, for the defendant,
    objected to the service and return of the execution, that the appraisement was certified and subscribed by two only of the appraisers, although three were sworn, and the one who did not sign the certificate acknowledged the receipt of his fees as an appraiser. No reason was assigned for the omission of his subscription. 
    
    
      But the Court thought, on the ground that it appeared that three were duly appointed and sworn, and that there was evidence that the three had acted under their appointment, the return might be sustained.
    
      
      Mellen
    
    then contended that, as no actual eviction of the plaintiff was shown, and it did not appear that he.had removed the encumbrance, by redeeming the land, he was entitled to nominal damages only; and he cited, to this point, the case of Prescott vs. Truer man. 
      
    
    
      
      
        Moffit vs. Jaquins Al. 2 Pick. Rep. 331.
    
    
      
       8 Mass. Rep. 284.
    
    
      
       4 Mass. Rep. 627.
    
   The Court

observed that here was an actual eviction under a paramount title, and as this had been ruled, in the * case last cited, to be a breach of the covenant against encumbrances, the proper measure of damages would be the sum at which the land was appraised, with interest thereon from the time of the eviction ; and judgment was entered accordingly upon the default of the defendant.  