
    Zechariah Eddy, Petitioner for Partition, versus Eliar Knap.
    When a sheriff returns, upon an execution, that he has appointed two of the appraisers of real estate to be levied upon, he must also return that the debtor refused to choose one.
    The petitioner claims three fourth parts of the premises described in his petition.
    The respondent pleads that he is seised of one half part, and traverses the petitioner’s seisin of three fourth parts.
    The petitioner, in his replication, says he is seised of three fourth parts in manner and form, &c., and this he prays may be inquired of by the country.
    Upon issue joined, the cause was tried before Parker, J., at the last May term in this county. The petitioner offered in evidence a judgment of the Court of Common Pleas for this county, October term, 1783, in favor of Polycarpus Edson, against Adam Edson, and an execution thereon levied on one fourth part of the premises The respondent objected to this evidence, because it appeared that the sheriff had appointed two of the * ap- [ * 155 J praisers, although he does not certify that the debtor had refused to choose one. The judge overruled the objection. The respondent filed his exceptions to this opinion of the judge, and now moves the Court for a new trial on this ground.
    The counsel for the petitioner observed that this execution was levied under the statute of 6 G. 1, c. 2, and attempted to make some distinction between that statute and the act of March 17, 1784, which was a revisal of the former one, but they did not appear to rely much upon the distinction, and the Court observed that the construction of the two statutes had been similar as to th.s point.
   Parker, J.

When this objection was made at the trial, I over ruled it, but not without doubts then existing in my mind. I am now satisfied that this evidence ought not to have gone to the jury. It appears, by the return on this execution, that two of the appraisers were appointed by the officer, who does not show that the debtor refused to choose one. It ought to appear that the debtor had an . opportunity to choose one. On this ground, I am of opinion that there ought to be a new trial.

Sewall, J., of the same opinion.

Parsons, C. J.

My mind is satisfied on this question. At the common law, land is not liable to execution. This being wholly a provision of a «fatuto, the proceedings ought substantially to pursue the statute. The act of 6 Geo. 2, c. 2, by force of which this execution was levied, directs the officer to cause three indifferent and discreet freeholders to appraise the land on oath. Of these appraisers the creditor is to choose one, the debtor one, if he see cause, and the officer the third. If the debtor does not see cause to appoint an appraiser, the duty necessarily devolves on the officer, or he cannot cause the land to be appraised by three appraisers. But here is nothing shown to authorize the officer to appoint two •of the appraisers. It does not appear that the debtor had the option given him by law, as the officer does not return that the debtor did not see cause to choose an appraiser. The objection is fatal. The execution ought not to have been given in evidence, because the judgment creditor derived no title to the land by the levy.

New trial granted 
      
      
         Whitman vs. Tyler & Al. 8 Mass. Rep. 284.
     