
    Cheesborough v. Clark and Fanning.
    It is no objection to the title under the levy of an execution, that it was taken out sooner than it was agreed to have been —nor that one of the appraisers, was tenant to the defendant; where both parties knowingly agreed to have him.
    By next assistant, etc. to be applied to, to appoint an appraiser, is not to be understood strictly the nearest, but one near by in the same town.
    ActioN of ejectment. Plea not guilty to jury. Plaintiff’s title — -The levy of an execution upon said Panning’s land; to which levy, three exceptions were taken by the defendant; 1st. That by a written agreement the execution was not to have been taken out so soon by two months, as it was. 2d. That William Williams, Esq. who appointed one of the appraisers, was not the nearest justice to the land who could judge between the parties. 3d. That the appraiser chosen by the debtor, and agreed to by the creditor was tenant to the debtor, and not an indifferent person.
   By the Court.

As to the first exception such agreement between the parties is not admissible on this issue to defeat the title. By next justice, in the statute is not meant strictly the nearest, but some one in the town where the land lies. As to the third exception, there is no law that excludes a tenant from being an appraiser of land, taken on execution; and where the parties having knowingly and' understandingly agreed upon him, as in the present case, both parties knew he was tenant; they are estopped to say he is not indifferent, especially the debtor, whose tenant he was, and who chose him. Yerdict and judgment for the plaintiff.  