
    Samuel Cutting et ux. versus Josiah Rockwood.
    Where a person, having as administrator attached real estate, was appointed by the debtor to appraise the same real estate when set off on the execution of a previously attaching creditor, it was held that neither the debtor nor subsequently attaching creditors could object that he was interested.
    An officer returned on an execution against a tenant in common, that he had delivered seisin of “5 acres and 100 rods of land of an average value, lying in common and undivided with J. B. in a farm &c., containing 122 acres, and an equal proportion of the buildings thereon standing, said farm bounded” &c., and the extent was sustained.
    When the quantity of land stated to be appraised and set off on several executions, exceeds the quantity contained in the whole tract, the extents are not therefore irregular, but the creditor whose execution is extended last only takes what remains after the previous extents.
    Trespass quart clausum fregit. The case came before the Court upon an agreed statement of facts.
    On the 8th of July, 1820, Jonathan and Otis Batchelor were seised as tenants in common, in equal shares, of a farm containing 122 acres. On that day Ezra and Daniel Nelson sued out a writ of attachment against Otis Batchelor, and attached his estate in the farm. Three other attachments were afterwards made on the same estate of Otis Batchelor before the 21st of July, when he conveyed by deed his undivided moiety to Jonathan. After this conveyance the farm was attached upon nine writs against Jonathan, and upon four against Jonathan and Otis jointly. Judgments were recovered against the defendants in all these seventeen actions, and the plaintiffs in the four first extended their executions on Otis Batchelor’s estate in the farm, and the plaintiffs in the other actions extended theirs on the remaining part of the tarm as the estate of Jonathan. The officer returned on the execution first extended, that he-had caused disinterested men to appraise the land set off, and (by a reference to the certificate of the appraisers) that he had delivered seisin of “ 5 acres and 100 rods of land of an average value, lying in common and undivided with Jonathan Batchelor, in the following farm &c., containing 122 acres, and an equal proportion of the buildings standing thereon, said farm bounded &c., at the sum of” &o. The returns on the other executions were similar, except that at each successive levy an additional cotenant was named in the return. One of the actions was brought by Ezra Wood, as administrator of Elisha Taft In extending fifteen of the executions of the other creditors, eleven of which had precedence of Wood’s, Wood acted as an appraiser, and in each instance he was chosen by the execution debtor. The estate of Taft was solvent. The creditors in all these executions, to whom the whole of the farm was set off in separate parcels in the manner before described, defended this action, claiming to hold by virtue of the extents. The defendant was their tenant as to part of the farm, and of the remaining part he claimed to be seised as a judgment creditor in one of the executions.
    After the several attachments above mentioned were made, Benjamin Reed, from whom the plaintiffs derived their title to the land described in their declaration, sued out a writ against Jonathan Batchelor and obtained an execution, which was extended on a specific portion of the farm in question, by metes and bounds, as the estate of Jonathan ; and this portion is the place where the trespass was alleged to have been committed.
    If the Court should be of opinion, that Reed, by virtue of his levy, acquired a title to the land, the defendant was to be defaulted ; otherwise the plaintiffs were to become non-suit.
    The case was argued by Newton, for the plaintiffs, and by Hastings and E. H. Mills, for the defendants.
   Wilde J.

delivered the opinion of the Court. This case, being trespass quare clausum fregit, cannot be maintained, if any one of the executions under which the defendant holds was legally extended. For Y so, Jonathan Batchelor had an estate in common, and the execution under which the plaintiffs claim was not well extended by metes and bounds. Besides, it is a sufficient justification for the defendant, that he, or those under whom he holds, had an estate in the premises in common, with the plaintiffs.

Several objections have been raised to the proceedings of the creditors under which the defendant holds, but we cannot consider any one of them as valid.

It is first objected, that Ezra Wood, one of the appraisers, was interested, he being an attaching creditor. If this objection is open, and the return of the officer is not conclusive in this respect, it is nevertheless a sufficient answer, that if he had any interest it was altogether in favor of the debtor ; who is estopped to make the objection.

It is next objected, that the portions set off on the several executions are not definite and certain ; but we perceive no want of certainty, and the portions are as definite as figures can make them. ,

It is also objected, that the quantity of land appraised and set off on the several executions under which the defendant claims, exceeds the quantity contained in the whole tract, and that this also is irregular. We cannot however so consider it. The execution last extended could only take the residue of the debtor’s interest, not taken on prior executions ; so that the trifling surplus which was appraised on the executions produces no error in the proportion. The mistake prejudiced none but the last attaching creditor. Neither the debtor, nor any one claiming under him, can object. Atkins v. Bean et al., 14 Mass. R. 407.

The defendant’s title, therefore, must prevail, and accoi ting to the agreement of the parties, the plaintiff must become non-suit. 
      
       See Knox v. Silloway, 1 Fairfield, 211 ; M‘Elderry v. Flannagan, 1 Harr. & Gill, 308.
     
      
       But see Mitchell, v. Kirtland, 7 Connect. R. 229.
     
      
       On this point Varnum v. Abbot, 12 Mass. R. 474,—Bartlet v. Harlow, ibid. 348, and Baldwin v. Whiting, 13 Mass. R. 57, were cited for the plaintiffs, and Adams v. Frothingham, 3 Mass. R. 352, for the defendant.
     
      
       See Buck v. Hardy, 6 Greenl. 165 ; Hedge v. Drew, 12 Pick. 141 ; Lee v. Hinman, 6 Connect. R. 165 ; Thomas v. Turvey, 1 Harr. & Gill, 435 ; Jackson v. Walker, 4 Wendell, 462 ; Walsh v. Ringer, 2 Ohio R. 327 ; Howe’s Pract. 289, 290.
     
      
       See Coos Bank v. Brooks, 2 N. Hamp. R. 148.
     