
    Lois Lawrence versus Amos Pond.
    The return of the sherifíj as to the legal qualifications of the appraisers of land taken on execution, cannot he questioned in an action of debt upon the judgment.
    Where a creditor had extended his execution upon the real estate of his debtor and had caused the execution and return to be recorded in the registry of deeds, but had never returned it into the clerk’s office; it was holden that he could not maintain an action of debt upon his judgment.
    This was an action of debt on judgment, and was submitted to the determination of the Court, upon the following facts stated and agreed by the parties.
    The plaintiff recovered the judgment declared on, and in Octo ber, 1819, caused her execution, issued thereon, to be extended upon the defendant’s real estate. The execution was seasonably returned into the office of the register of deeds, and was there recorded ; but the plaintiff took it from that office, before it had been returned into the clerk’s office, and has ever since retained it in her possession.
    
      
      Benajah Pond, the appraiser chosen by the defendant at the time the said execution was extended, had been before that time convicted, in the Supreme Court of the state of Rhode Island, of the crime of passing counterfeit bank notes, knowing them to be counterfeit; and the sentence of the Court had been executed upon him.
    Judgment was to be entered, as the opinion of the Court should be upon these facts, upon the nonsuit of the plaintiff or the default of the defendant.
    * Metcalf‘ for the plaintiff.
    The levy is not of record, [ * 434 ] and the plaintiff has therefore no title to the land. The title remains in the defendant .
    The only distinction between the case at bar and that of Ladd vs. Blunt is, that here the plaintiff prevented the return of the execution. In Tobey vs. Leonard 
      , the Court say, a creditor may decline to record the levy, if he intends not to take the lands in satisfaction. For the same reason he may prevent a return of the execution and levy into the clerk’s office.
    The appraiser chosen 'by the defendant was not “ discreet ” within the intention of the statute . Whether appraisers are likened to witnesses or to jurors, he was incompetent ; and the plaintiff had no opportunity, until this time, to make the objection.
    
      Richardson for the defendant.
    If there were no other objection to the plaintiff’s recovery, it would seem to be sufficient that after judgment and satisfaction in this suit, she may cause her former execution and levy to be returned, and thus have two satisfactions of one debt.
    In the case of Ladd vs. Blunt, it was admitted by the demurrer that there was no record of the return of the execution, and of the levy made under it; but the present case finds that there was such a record, and the plaintiff could have held the land, if she had so elected.
    
      
       4 Mass. Rep. 402, Ladd vs. Blunt.—15 Mass. Rep. 139. McLellan vs. Whitney.
      
    
    
      
       15 Mass. Rep. 202.
    
    
      
      
        Stat. 1783, c. 57. Ancient Charters, fyc. 423
    
    
      
      Z4) 1 Brovndow, 34.
    
   Curia.

The return of the sheriff, as to the qualification of the appraisers, cannot now be questioned.

In the cases where actions have been sued upon judgments, and maintained notwithstanding a levy on real estate, there has been some defect of title apparent upon the return. In such case the creditor is not bound to record his levy, but may waive it and avail himself of his judgment. But after seisin is delivered by the sheriff, under a lawful levy, which devests the title of the debtor, the creditor cannot waive his levy, and resort to his judgment.

If in the case of Ladd vs. Blunt, the defendant, in place of demurring to the replication, had filed a rejoinder alleg- [ * 435 ] ing * that the creditor had neglected to record the execution and levy, the judgment might have been different from what it was.

Plaintiff nonsuit.  