
    Thomas Bond, by his Guardian, versus James Bond.
    Where an execution in favor of a spendthrift is extended on land, the guardian may appoint an appraiser and receive seisin in behalf of his ward.
    If the appraisers view the land, without going upon it, it is sufficient.
    Where several parcels of land are set off, the debtor cannot redeem one without redeeming all, and it is not necessary to make a several appraisement of each.
    This was a writ of entry brought by the demandant, a spendthrift under the guardianship of Stephen Thompson, to recover seisin and possession of two parcels of land. The demandant counted upon his own seisin and a disseisin by the tenant; who pleaded nul disseisin.
    
    At the trial, before Lincoln J., the demandant, to prove his seisin, offered in evidence the return of an execution in nis favor against the tenant, which had been extended on the lands in question.
    The tenant objected that the extent was insufficient: — 1 Because it appeared by the return, that the appraiser on behalf of the demandant was appointed by Thompson, as guardian to the creditor, and that seisin was delivered to Thompson, and this too, when it did not appear by the judgment or execution that the creditor was under his guardianship : — 2. Because it did not appear by the certificate of the appraisers, that they entered upon the land appraised, but only that they viewed it and set it out by metes and bounds : — 3. Because it appeared by the certificate and return, that there were two different parcels of land extended upon and appraised, and of different descriptions, one having buildings upon it, and that both were appraised together in one gross sum or value. But it being admitted that Thompson, during the pendency of the original suit, was duly appointed guardian, and it appearing by the record of the case that he appeared in court and prosecuted that suit in behalf of his ward, the judge overruled the objections, and a verdict was returned for the demandant, to be subject to the opinion of the whole Court.
    Allen, for the tenant,
    upon being told by the Chief Justice, that the Court had lately decided that - it was not necessary for appraisers to go upon the land to be set off, said he should not urge the second objection. As to the first, he contended that the statute (1783, c. 57, § 2) expressly required the officer to deliver seisin to the creditor or his attorney, ana that this provision should be strictly pursued. Moreover, the statute of 1783, c. 38, § 7, permitting a judge of probate to appoint a guardian to a spendthrift, is unconstitutional. It would be singular that a party should be protected by trial by a jury in any case in which the value in controversy exceeds twenty dollars, and yet should be subject to be deprived of some of his most important personal rights by an individual magistrate. This statute, how'ever, takes away from the ward nothing but his power to sell his real or personal estate, and the Court will not take other rights away from him by construction. The demandant himself was the person to elect whether he would levy on real or personal estate. The seisin was vested in the guardian, if any body, and not in the ward, for the ward gave no consent. The case of infants and persons non compotes mentis is different for there the law' presumes consent. In those cases a guardian is appointed for want of capacity in the ward ; not so in the case of a spendthrift.
    
      2. The appraising of both parcels together was illegal. In 
      Boylston v. Carver, 11 Mass. R. 515, it has been decided, that different persons may be employed to appraise lands in different parts of the same county, and as a matter of convenience the Court would construe the statute (1783, c. 57) in the manner we contend for, even if the words of it would bear a different construction ; which we say they will not. The levy passes the estate conditionally only, and where two parcels are set off the debtor may redeem one without redeeming the other; for the statute, in § 3, gives a right to make a tender to the creditor or to the tenant in possession, and there may be a separate tenant of each parcel. So the debtor may assign one parcel to an innocent purchaser, and how can the assignee redeem, if the several parcels are appraised in one gross sum ? Two equities of redemption cannot be sold on execution for one gross sum, for that would be an oppression to the debtor.
    
      E. H. Mills, on the same side,
    observed that by St. 1785, c. 6, if the creditor is evicted from land extended on, he may upon a scire facias have a new execution.' But if he is evicted from one of several parcels appraised in one gross sum, how can he avail himself of this provision ? For what sum shall the new execution issue ? [Parker C. J. Suppose the execution is extended on one parcel only, and the creditor is evicted from part of it.] It is enough for us to show that in some cases inconveniences may be avoided by separate appraisements ; and the practice has been to make appraisements in that manner.
    
      Wells, for the demandant,
    cited to the point that a delivery of seisin to the guardian was sufficient, Jones et ux v. Brewer, 1 Pick. 314 ; Pratt v. Putnam, 13 Mass. R. 361 ; and to the other point, Barnard v. Fisher, 7 Mass. R. 74.
   Parker C. J.,

in giving the opinion of the Court, said in substance, that they saw no reason for questioning the constitutionality of the statute providing for the appointment of guardians to spendthrifts. We apprehend that the government have always a right to protect the property of citizens for the benefit of themselves and their families, and of the community. Here the people have deputed their power to the judge of probate, and the appointing of a guardian by nim is not taking away the spendthrift’s property, but preserving it to him for his own use. If the constitutionality of the provision is at all questionable, it must be on the ground, that in the appointment of a guardian the spendthrift has not the benefit of a trial by jury ; but that is not a process in which he is deprived of such benefit, for he may appeal to the Supreme Court, where a trial by jury may be ordered.-

The next question is, whether the interposition of the guardian in appointing an appraiser and receiving seisin of the land, was conformable to the statute which provides that these things shall be done by the creditor or his attorney. The guardian is not technically an attorney, but if the ward cannot in such case act by his guardian, he cannot obtain payment of his debt. He ought not to be deprived of this power in consequence of having a guardian, and it appears that the power given to a guardian of a spendthrift is like that given >o guardians of idiots, &c., who are empowered o “ sue for and recover ” all just debts due to their wards. Under this authority the guardian may carry on a suit to execution, and receive seisin of land extended upon, and by operation of law the seisin is the seisin of the ward himself. Or the guardian might in such case be held to be an attorney.

The last objection on the part of the tenant, that the several parcels of land were appraised in one gross estimate, presents a question of more difficulty, but the Court think the objection cannot be sustained. The question is obviously óf no importance, unless the debtor has a right, where several parcels are extended on, to redeem one parcel without redeeming the rest ; and we think it is pretty evident, that by a fair construction of the statute he has no such right. He would otherwise redeem a favorite parcel, leaving the rest to satisfy the debt The object of the statut was not that the land should be taken in payment of the debt, but that the levy on it might compel the debtor to pay the debt. If he could redeem a separate parcel, it would tend to diminish the chance of the creditor’s getting payment in money, which generally he prefers. Nor should the debtor dc allowed to avail himself of the fluctuation in the value of real estate, so as to redeem a parcel which has risen in value and leave to the creditor one which has fallen. The statute intends that the full amount of the debt shall be tendered to the creditor, in order that the debtor may be restored to his land.1 *There might be a case of a farm purchased in distinct lots at several times. Instead of going to the expense of a survey, the appraisers might describe the several parcels from the deeds, and it might not be proper or advisable to appraise them separately, as their value might be increased by taking them in connexion with one another.

Judgment according to the verdict. 
      
       See Hammatt v. Bassett, post, 564.
     
      
      
        See, Atherton v. Jones, 1 N. Hamp. R. 363, in note.
     
      See Foss v. Stickney, 5 Greenl. 390,
     