
    * George Waterhouse versus John Waite.
    Where a judgment creditor neglected, for a month after his execution had been levied on lands of his debtor, to receive seisin thereof, and the officer afterwards neglected to return the execution in season to be recorded within three months, whereby the creditor lost the benefit of his levy, the officer was holden to be liable to nominal damages only.
    This was an action of the case against the defendant, as sheriff of the county of Cumberland, for the neglect of his deputies in the service of an execution. The declaration alleges that the plaintiff, in the Supreme Judicial Court, October term, 1807, recovered judgment against one Joshua Dunn for the sum of 178 dollars 30 cents, as by the record, &c., and on the 18th of November in that year sued his execution on the said judgment, and delivered the same to one Jacob Thurlo, a deputy of the pla.intiff, to be by him served, &c., and directed him to levy the same on certain land of the said Dunn, which had been attached by the said Thurlo on the original writ in that case. The said Thurlo, on the 23d of the same November, caused ninety-six acres of the said land to be appraised and set off to the plaintiff for the amount of the said judgment, together with the costs of the levy; which costs the said Thurlo demanded and received of the plaintiff. But the said Thurlo, regardless of his duty in this behalf, did not return the said execution, either to the registry of deeds, or to the clerk’s office of the said Court, within three months, as by law he ought to have done, but wilfully neglected so to do; by means whereof the plaintiff lost the benefit of his said judgment, the said Dunn being wholly'insolvent, &c.
    At the trial of this action before Thatcher, J., at the last October term in this county, the plaintiff produced evidence of the judgment recited in his declaration, and the delivery of his execution to Thurlo, who had attached the land afterwards levied upon, on the 7th of May, 1807, upon the plaintiff’s original writ against Dunn.
    
    The appraisers were sworn on the 23d of November, 1807, and on the same day signed the certificate of their appraisement, within thirty days from the rendition of the judgment. The dep.ity dated the return of his extent on the 23d of December, and on the same .day the plaintiff acknowledged full satisfaction of the judgment. But * W. Campbell, one of the appraisers, [ * 208 ] swore that the plaintiff received seisin and possession upon the same day on which the appraisers were sworn. The execution, &c., was received and recorded in the office of the register of deeds on the 11th of April, 1808, but did not appear to have been returned at any time to the clerk’s office. There was evidence of an acknowledgment, on the part of Thurlo, that he had received three dollars of the plaintiff, to pay for the recording of the execution.
    The plaintiff also proved that Dunn conveyed the land, on which his execution was extended, to one Edmund Pulcifer, by deed dated March 18, 1807, but not recorded until May 27 of that year; that the said Pulcifer had recovered judgment for possession of the said land in an action against the plaintiff; and that Dunn had been reputed to be insolvent ever since the year 1807.
    On this evidence, the judge instructed the jury that it was a part of the official duty of the deputy sheriff to procure the execution and levy to be returned and recorded within three months after the levy was made ; and that, if he had neglected to do it, the sheriff must be answerable for the neglect; that, although the land levied upon was conveyed by Dunn to Pulcifer before the attachment on the plaintiff’s original writ against Dunn, yet, as the deed was not recorded until after the attachment was made, and as the levy was made within thirty days after the judgment, the title to the land would have been good under the levy, if the execution had been returned and recorded within three months after the extent of it upon the land ; and that, if the execution was not returned and recorded within that time, the jury ought to assess damages for the plaintiff to the full amount of his execution against Dunn, with the charges of levying the same. And the jury returned their verdict accordingly.
    The defendant filed exceptions to the said directions of the judge, and the cause stood over to this term for the consideration of the said exceptions.
    * Longfellow, for the defendant,
    argued that, although it was the duty of the deputy sheriff to return an execution, of which he had made service, yet it was no part of his duty to procure it to be recorded in the registry of deeds; and that, in undertaking this service at the request of the creditor, he was not acting as the defendant’s -deputy, but merely as the agent of the creditor; and therefore the defendant was not by law responsible for his execution of the trust.
    
      The evidence of Campbell ought not to have been received, as it went to contradict the return of the officer, and the plaintiff’s own. acknowledgment. The plaintiff’s neglect or refusal to complete the extent for so long a period, by receiving, possession, amounted to a relinquishment of the lien created by the attachment and seizure.
    
      Mellen and Greenleaf, for the plaintiff.
    It is the general duty of an officer, who has served an execution in any manner, to return the same with his doings thereon. Especially is it his duty to do this within three months after extending an execution on real estate ; since, if he neglects this, the whole effect of his service is lost to the creditor. The plaintiff’s paying the officer an extra fee, in this case, for performing what was before his duty, can with no decency be objected as exonerating him, or the defendant, his principal, for neglecting this duty until nearly five months had elapsed.
    If it constituted no part of his official duty to procure the execution and return to be recorded in the registry of deeds, yet it will not be denied that he was bound to return them to the clerk’s office, which, in this case, the deputy wholly neglected ; and, in consequence of this neglect, the plaintiff has lost the whole benefit of his suit.
   Curia.

Two questions have been under our consideration in this case. Whether the action is maintained; and what damages the plaintiff is entitled to recover, supposing the action maintained.

Upon the first question we are not perfectly agreed, as to the effect of the evidence before us. If it were clear that [ * 210 ] *the undertaking of Thurlo, the deputy of the defendant, was merely personal; that, for an agreed compensation, he engaged to the plaintiff to procure the registry of the execution and return, we should be unanimous in the opinion that the defendant is not liable to an action for Thurlo’s neglect to fulfil such undertaking,

But, whatever the effect of the evidence may be as to the first • question, we are all agreed that the plaintiff is entitled to recover nothing more than nominal damages; and principally on this ground, that, to entitle himself to full damages, it should appear that the suffering and loss of which he complains are altogether chargeable to the neglect or misconduct of the deputy sheriff. But such does not appear to have been the case here.

The delivery of seisin to the judgment creditor was necessary to complete the extent; and although, if the land be seized in execution within the thirty days from the judgment, the benefit of the at* tachment is thereby saved, and a reasonable time may be allowed afterwards to complete the levy, yet the neglect of the creditor, for a month after the seizure and appraisement, to receive seisin, was an unreasonable delay, and such loches on his part as amounted to a waiver of the previous lien obtained by the attachment; and that it was thus owing to his own negligence that his title under the attachment and levy was avoided by the intermediate conveyance by the judgment debtor to Dunn. On this ground the verdict is set aside, and

A new trial granted.

CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT, IN THE COUNTY OF KENNEBECK, MAY TERM, 1814, AT AUGUSTA. PRESENT: 
      
      
         Knowlton vs. Bartlett, 1 Pick 371.
     
      
       9 Mass. Rep. 392, Haywood vs. Hildreth.
      
     
      
      
         Tobey vs. Leonard, 15 Mass. Rep. 200. — Ladd vs. Blunt, 4 Mass. Rep. 402. — Shove vs. Dow, 13 Mass. Rep. 529. — Brown vs. Maine Bank, post, 153.— M’ Gregor & Al. vs. Brown, 5 Pick. 170. — Prescott vs. Pettee, 3 Pick. 331.
     