Booth against Booth

Booth against Booth. The act of May, 1826, providing that no levy of an execution on real estate, previously made, shall be deemed void, because the officer embraced in his return, as part of the costs of levy, other and greater fees than were by law allowable, is a constitutional and valid act. To transfer the title to real estate, by levy of execution, every requisite to a valid levy must appear on the return, by express words, or by reasonable construction. Where the officer certified in his return, that he demanded of the debtor, money, goods or chattels to satisfy the execution, but none were paid or shewn to him ; in an action of ejectment by the creditor against the debtor, it was held, that it sufficiently appeared from such return, that personal estate of the debtor could not be found. Where it appeared from the return, that the right and title of the debtor in the land levied on was appraised, and that was set off to the creditor; it was held, that the land was well set off. Where the return omitted to state, that the justice of the peace who appointed an appraiser, could judge between the parties; it was held, that such omission was not a fatal defect ; it not being necessary to negative any exception to the capacity of a magistrate. Where the officer certified in the body of his return, that the appraisers were freeholders of the town where the land lies ; and the certificate of appraisers, which the officer annexed to his return, below his signature, and caused it to be returned to and recorded in the clerk’s office, stated, that they were indifferent freeholders ; it was held, that the officer thereby adopted the certificate of the appraisers, making their averment his own ; and consequently, that it sufficiently appeared from the return, that the appraisers were indi[ereni freeholders. It seems, also, that an averment, by the officer, in his return, that the appraisers were appointed and sworn according to law, implies, that they were indifferent and unexceptionable. Where the officer certified in the body of his return, thst the appraisers appraised the land levied on at a certain sum, and that he thereupon set off the land to the creditor ; and he annexed to his return, below his signature, the certificate of the appraisers, and caused it to he returned to and recorded in the clerk’s office ; it was held, that by fair implication, such certificate was in the possession of the officer, and that too, before he set off the land ; because he could not set it off before he knew its value, and he could not know its value but by the certificate; and because every man acting officially is presumed to have done his duty, until the contrary appears. This was an action of ejectment; to which the general issue Was pleaded. The deiendant, Phebe Booth, claimed title to the demanded premises, by virtue of the levy of an execution in her favour against Thompson Booth, the deiendant, and two other persons. A copy of the execution and of the officer’s return, duly authenticated, being offered in evidence, the deiendant objected to the return, on the ground that it did not appear thereby, that the requirements of the statute {tit. 2. s. 76.p. 57.) had been complied with. In this stage of the cause, it was taken from the jury, by consent of parties ; and the question as to the admissibility of the return was reserved for the advice of this Court. The return was as follows : “ Litchfield county, ss. New-Milford, December 15th, 1825. Then, with this execution, I repaired to the within-named Joseph Booth and Daniel Booth, and made demand of them for money, goods or chattels to satisfy this execution and costs, but none were paid or shown unto me ; and on the same day, I repaired to the usual place of abode of the w'ithin-named Thompson Booth, and there made demand for money7, goods or chattels to satisfy this execution, and costs, but none were paid or shewn unto me. Then, by virtue of the within execution, and by direction of the creditor, I, at said New-Milford, on the same 15th day of December 1825, levied this execution on the following described piece of land, as the property of the within named Thompson Booth, situated in said New-Milford,” &c. [Here the land was particularly described.] The return proceeded as follows : “ The creditor appointed Levi Morris, Esq., a freeholder of said New-Milford, an appraiser of said land ; and I applied to said Thompson Booth, and notified him to appoint an appraiser. I then applied to Joel Sanford, Esq., the next justicé of the peace, of said New-Milford, and he appointed Lewis Frost and David Burr, both freeholders of said New-Milford, appraisers of said land; which appraisers were all duly sworn according to law ; and they did, under oath, on the 5th day of January, 1826, appraise said land at 197 dollars and 26 cents, being the true and just value of all the right and title that the said Thompson Booth has in and to said land. I do, therefore, on the 6th day of January, 1826, by virtue of this execution, hereby set off to the creditor named in this execution all the right and title, that the said Thompson has in and to said piece of land, at the sum of 197 dollars and 26 cents, in full satisfaction of this execution and costs. Attest. Almon Treat, Constable of New-Milford.” Then followed a schedule of the officer’s fees, comprising these items among others : “Travel to get appraisers appointed - - $0. 5 Justice’s fee for appointing - - - - 0. 12 Appraisers’ fees - - - - - - 3. 00 Expenses for victualing appraisers - - - 0. 87⅛ Chain-bearers.* 0. 25 My time with appraisers - - - - I 0 50” The following certificate was then subjoined : “Litchfield County, ss. New-Milford, January 6th, 1826. We the subscribers, indifferent freeholders of New-Milford, appointed by the creditor and Joel Sanford, Esq., Justice of the Peace, to appraise all the right and title, that the within-named Thompson Booth has in and to said piece of land, on which this execution has been levied, by Almon Treat, constable, a particular description of which may be seen in the foregoing indorsement, we do appraise and value the same to be worth to the creditor 197 dollars and 26 cents, as is described in said Treat’s endorsement above. Levi Morris, J David Burr, > Appraisers.” Lewis Frost, y Next followed the certificate of Justice Sanford, dated the 19th of January, 1826, that he appointed two of the appraisers and administered the oath to them all. The certificate of the town-clerk, dated also the 10th of January, 1826, that the execution and return had been received for record and recorded by him, and of the clerk of the court, dated the 14th of January, 1826, that the same had been filed in his office, completed the document. The case was first argued before this Court, in June 1827, Hosmer, Ch. J. and Peters, Lanman and Daggett, Js., being present, by J. W. Huntington and P. Smith for the defendant, and by Sherman and D. S. Boardman for the plaintiff. The Judges, after consultation, being divided in opinion, the case was continued, to be argued again before a full Court. At the term in June, 1828, Brainard, J. was unable to attend ; and the case was continued to this term ; when it was again argued, before all the present Judges, by J. W. Huntington for the defendant, and D. S. Boardmcm and Bacon for the plaintiff. The counsel for the defendant, after remarking, that the doctrine is now well settled, that every thing required by statute to constitute a valid levy, must appear on the return of the officer, either in express terms or by necessary inference ; and this, first, because the statute requires it, (p. 58. s. 77.) and secondly, because such is the object of the return, in order that the debtor and third persons may know whether the land is vested in the creditor, contended, I. That more land was taken and set off upon the execution, than the amount of the debt, costs and lawful charges. The legislature, in the act regulating salaries and fees, have specified the items of fees which an officer may lawfully take ; and all other items are are expressly prohibited, and are, of course, unlawful. Stat. 393. The levy of an execution on land operating as an entire conveyance of the land, is, in contemplation of law, an indivisible act. If it is illegal or invalid in part, it is, and from the nature of the case it must be, wholly so. As several unauthorised items were included in this return, it will probably be conceded, that the levy is invalid, unless it is aided by the confirmatory act of May 25, 1826. That act is inoperative, being opposed to the constitution of tins state, {art. 1. s. 9.) inasmuch as it deprives a person of his property without due course of law. Retrospective laws, the object of which is to supply some defect or correct some mistake or informality, have indeed been sanctioned. But the law in question was not of that character. At the time it was passed, this land belonged to Thompson Booth. The levy, so far as this point is concerned, was not merely defective or informal, but was absolutely null and void. If the law is to have effect, it takes, proprio vigore, the land of Thompson Booth, and gives it to Phehe Booth. 2. That it does not appear from the return, that personal property sufficient to satisfy the execution could not be found ; and consequently, the levy on land was unauthorized. Stat. 57. The officer must either state in terms, that such estate could not be found by him ; or he must state, that he made diligent search for it without success. To say that he demanded it, and it was not shewn to him, is not equivalent to saying that it could not be found by him. This essential requisite appears neither by express averment, nor by necessary inference. 3. That the return does not shew, that the land levied on was set off to the creditor, but merely the right and title which the debtor had ; and what that was, does not appear. The statute requires the officer to set off, by metes and bounds, so much of the lands as may be sufficient, &c. Stat. 57. 4. That it does not appear, that the justice of the peace, by whom two of the appraisers were appointed, and sworn, could by law judge between the parties in civil causes. This is one of the requisites of the statute; and its existence must be shewn by the return. The law has delegated a special authority to a particular class or description of magistrates ; and no other person can legally exercise it. 5. That it does not appear from the return, that the appraisers were indifferent freeholders. To this objection two answers are anticipated. First, that it is not necessary that this fact should be expressly stated ; as the law will presume that they are indifferent, until the contrary appears. As to those appointed by the justice, this presumption may properly arise, from the fact the justice is to be presumed to have done his duty. But in relation to the appraiser appointed by the creditor, no such ground of presumption can exist. The creditor himself is not indifferent; and the justice has no discretion to exercise in relation to the appointment. If a person so appointed is presumed to be indifferent, it must be because the law presumes indifference from the mere fact of the appointment. There is nothing else from which the inference can be drawn. But it is very obvious, that such a presumption would be most unsafe and dangerous. On the same ground it may [be presumed, that the appraisers -were freeholders ; for there is the same ground for the presumption ; or that they were freeholders of the town where the land lies ; or that they were sworn. Secondly, it may be said, that it does appear from the return of the officer, that the appraisers were indifferent; for the appraisers have so certified, and their certificate is a part of his return. It is true, that the appraisers have so certified ; but it is denied, that their certificate, or at any rate, that part of it which contains a statement of their indifference between the parties, constitutes any part of the return of the officer ; and this, it is believed, is susceptible of demonstration. This leads to the consideration of the question, what is the return of the officer 1 It is that to which he has certified; that which he has. attested; that which he has made his own, either by express terms, or by reference. It is obvious, that nothing can be a part of his return, except what receives his official sanction ; and it is very clear, that the statute intended (and such has been the uniform construction,) that the officer, acting as the agent of the law, should, under his oath of office, attest, or give his official sanction to, the existenceffif all the requisites made necessary to constitute a valid levy. To him alone is confided the authority to certify the facts ; and he is authorized and required to make such certificate ; and therefore, the statute says the officer shall make his indorsement of such appraisal and proceedings. Stat. 58. s. 77. Now, is a certificate of the appraisers appearing on this execution, to which the officer has not attested, and to which he has made no reference, adopted by him, and by him certified to be true ? If so, the position must be assumed, that every thing which appears on the execution, constitutes a part of his return, and is to be considered as attested and sanctioned by him, because it appears there. Look at the consequences which would result from such a doctrine. In the first place, suppose the facts stated in the indorsement of the officer and those stated in the appraisal differ in an essential particular ; which is to govern ? Suppose there is a difference as to the amount of the appraisal, or the quantity of land ; would the levy be good ? Secondly, if this doctrine be true, it necessarily follows, that a levy would be valid, which did not describe the property set off, or state who the appraisers were, or how they were appointed, or the estimated value of the land — provided these facts appeared in the appraisers’ certificate. Thirdly, there being no reference, made by the officer, to the appraisal ; how can the court know, that the one which there appears, was either signed by the appraisers — or that it is the one under which the officer finally acted — or that it is the one which was delivered to him before he set off the land ? The officer has not identified it as such ; nor from any act of jjjg_ jg known how came there. Fourthly, the appraisers’ certificate is not an essential or necessary part of the officer’s return. If he certify to the facts, it is sufficient. The object of the appraisal is, that the officer may know what quantity of land is to be set off; and the object of the appraisers’ certificate is to enable the officer to certify the facts. Can it then be supposed to be a reasonable construction of the law, that the certificate itself should be sufficient evidence of the facts stated in it, when the very object for which it is required is to enable the officer to certify them ? But admitting that the certificate of the appraisers appended to the return, constitutes a part of it, as to all the facts to which the appraisers are competent to certify, being within the scope of the power delegated to them ; yet it is no part of their duty to certify that they are indifferent, nor are they competent so to certify. 6. That this return is defective, because it does not shew that the appraisal was in writing, or signed by the appraisers, or delivered to the officer. These are, unquestionably, indispensable requisites under the statute ; and it is obvious to inspection, that in the indorsement preceding the official signature of the officer, none of these facts are stated. To this objection no other answer can be given than that given to the preceding one, viz. that a written certificate is appended to the return, which, by intendment of law, constitutes apart of it, and is to be presumed to have been delivered to the officer. This reasoning has already been considered. It has no more solidity with reference to the present objection than the preceding one. 7. That it does not appear from any part of the proceedings indorsed on this execution, that the certificate of appraisal was delivered to the officer before he set off the land ; but it does appear, by fair, if not necessary inference, that it was delivered not only after the setting-off was commenced, but after it was completed. The statute, after requiring the appraisers to deliver their appraisal to the officer, proceeds thus : “ Who shall thereupon set out to the creditor,” &c. Slat. 57. s. 76. Where the words of a statute have a plain meaning, it must be construed according to its words. Any other rule of construction would make the judges framers of the law, instead of the expounders. But if we look at the object of 'the law as a guide in the construction, we shall be conducted to the same result. It was to enable the officer, from an authentic document in his own hands, to ascertain what quantity of land was to be set off. His information as to the appraisal was not to rest in parol; and he could not be furnished with a written appraisal, unless it was delivered to him. This point has also been settled by judicial decisions. Bill v. Pratt, 5 Conn. Rep. 126, 7. Met-calf v. Gillett, 5 Conn. Rep. 400. It will be said, however, that it does appear from the officer’s return, that previous to the setting-off, the appraisal was delivered to him. This appears neither from the indorsement of the officer, nor from the appraisal itself. Indeed, for aught that appears on these proceedings, there is no evidence that this appraisal was ever attached by the officer, or was ever received by him ; — much less, that it was before he made his indorsement. All that does appear, is, that it was recorded by the town-clerk, and is in the county clerk’s office ; but whether it was delivered by the appraisers, or the officer ; — whether it is an original or a copy, does not appear. Its appearance on the proceedings, now, as well comports with the delivery of it after as before the indorsement was made and signed. Where both the officer and the appraisers are silent as to the time of its delivery, and there is nothing from which the court can fix the time, there is no room for inference on the subject. But we go a step further. We insist, that it does appear, by fair, if not necessary inference, that it was not delivered until after the officer had completed his indorsement; for the in-dorsement is referred to expressly, in the appraisal: “A particular description of which may be seen in the foregoing in-dorsement —“ as is described in said Treats indorsement above.” Here we have indubitable evidence, that it was not delivered, nor signed, until the indorsement of the officer had been made out and completed. Our next proposition is, that if the appraisal was not delivered before the officer had completed his indorsement, it was not delivered before the land was set off to the creditor. When the officer has made and signed the indorsement, which is his return, he has set off the land. For first, he has then completed his official act, with the mere exception of causing it to be recorded, and then returned to the clerk’s office. He has no seisin or possession to deliver. His indorsement is to shew how much he has appropriated. Secondly, the statute (s. 76.) requires the officer to indorse on the execution the land set out [or set off] by him at the appraisal; — i. e. he is to state that it is wholly or partially satisfied by the land which he has thus set off; — most obviously presupposing, that he has set it off before he makes his indorsement of total or partial satisfaction. Thirdly, the statute (.?. 77.) makes it the duty of the officer to cause the execution, with his indorsement of appraisal and proceedings, to be recorded and returned, «fee. This evidently implies, that previous to the record, the officer is to make a written statement or indorsement of his proceedings ; but an important part of his proceedings thus to be indorsed, is the setting off by metes and bounds. This is his sole act; neither the town-clerk nor the clerk of the court having any thing to do with it; and if done at all, it must be done before the execution comes into their hands. The counsel for the plaintiff remarked, That most of the objections urged against the validity of the proceedings in question are built upon the assumption that the officer must evince his compliance with the requirements of the statute, by technical averments ; that such nicety has not heretofore been required ; that although it is a just principle, that all the requisites of the statute must be complied with, in order to an alienation of the title, it is not a just principle that the officer is bound to state his compliance, with technical skill and precision ; but it is enough, if to the eye of common sense it is apparent from the return that the requirements of the statute have been complied with. The latter principle is fully supported by the cases of Brace r. Gatlin, decided by this Court, in Jwne,1813, not reported, Beach v. Camp, 1 Root 241., cited 1 Swift's Dig. 155. Gold & al. v. Carrington, cited 1 Root 242. and Fendleton v. Button, 3 Conn. Rep. 406. They particularly insisted, 1. That if the officer embraced in his return, as part of the costs of levy, other or greater fees than were by law allowable, the irregularity was cured, by the confirming act of May 1826. That this is a constitutional an(j valid act, was decided in Beach & al. v. Walker, 6 Conn. Rep. 190. The levy in question was made previous to the enactment of the law. 2. That the return shews sufficiently, that personal estate of the debtor could not be found. In the first place, a demand and a refusal to pay or tender personal property, are stated in the return. The provision in the statute in regard to the taking of personal property, is in favour of the debtor ; and after having had an opportunity to turn out personal property, he cannot complain, whatever the creditor might do. Secondly, the statute, which requires the demand to be endorsed, does not require the officer to indorse a non est inventus as to personal property. Stat. 56. 57. sect. 74. 76. In the case of Pendleton v. Button, before cited, there was no such fact stated in the return. See the statement of the case, 3 Conn. Rep. 406. 3. That the officer acted correctly in setting off the interest of the debtor in the land. The words of the return are, “ all the right and title that the said Thompson Booth has in and to said land.” All that a man can have in land, is his right and title in it; and this is all that he can transfer. Co. Litt. 345. b. The mode pursued in this case, is the common one ; and if the officer, in terms, sets off an interest tantamount to a fee, when the debtor has a less estate, the latter cannot complain ; and the creditor will get such right as the debtor had in the land. Hitchcock v. Hotchkiss, 1 Conn. Rep. 470. Camp v. Smith, 5 Conn. Rep. 80. 4. That the return is not fatally defective, for want of an averment, that the appraisers were indifferent freeholders. It is to be observed, in the first place, that this does appear, by way of recital, and informally ; for in the certificate of the appraisers they are stated to be “ indifferent freeholders.” Secondly, it is not necessary that the officer should certify the fact of the appraisers being indifferent at all. It is enough that he states them to be freeholders of New-Milford: the law presumes them to be indifferent ; and their acts are good until impeached by matter in pais. This is an universal principle in relation to persons to whom the law assigns duties — e. g. justices, jurors, &c. It is not necessary to negate every possible exception, which may go to their disqualification. This point has been decided, in several cases, by the superior court; and was directly decided, by this Court, in Brace v. Catlin. It is no part of the duty or legal capacity of a constable to certify the legal qualifications of others. His own acts must appear from his return ; but it is not his province to certify any thing more. He does not appoint the appraisers ; nor can he con-troul the appointment of them. He cannot even be supposed to know their qualifications, whether they are chosen by the parties, or appointed by a justice of the peace. 5. That the omission in the return of an averment, that the justice to whom the officer applied to appoint appraisers, was one who by law could judge between the parties, is not a fatal defect. Most of the considerations applicable to the preceding point, are equally applicable to this. The justice will be presumed qualified to appoint. His act in so doing exceedingly strengthened that presumption : For if his act in appointing be sufficient to warrant the inference, that he has appointed proper persons, (i. e. freeholders) as it was said to be in Pendleton v. Button ; surely it will warrant the conclusion that he himself is qualified to make the appointment. Judges and justices, in the discharge of their official duties, are as strictly required to be indifferent as appraisers of land ; and yet no lawyer ever thought of averring in his writ, that the judge or justice could by law try the cause, and thus negative the exceptions, which might disqualify him. It may be added, that neither in Brace v. Catlin, nor in Pendleton v. Button, did the return shew, that the justice was not disqualified, though the clause in the statute supposed to bear upon this point was the same then as since the revision of 1821. Stat. 282. ed. 1808. tit. 63. c. 1. ⅛. 7. 6. That the return is not fatally defective for want of an averment, that the appraisers made an appraisement in writing, and delivered it to the officer before he set off the land. In the first place, if it were at all doubtful w'hether the officer were furnished with the appraisement before he set off the land, the law would presume that he was ; for in the absence of evidence, the law will presume the business to have been done right. It is a maxim of law, that “ omnia preesumuntur rite et solenniter esse acta, donee probetur in contrarium.” 3 Stark. JEv. 1250. Croft v. Pawlet, 2 Stra. 1109. Brice v. Smith, Willes’ Rep.1. 3 Stark. Ev. 1687. 1693. But secondly, from the return it appears, not indeed by technical and express averment, but by necessary implication, that the officer was furnished with the appraisement in writing, before the setting off of the land. That it was in writing is certain ; for of this the most unexceptionable evidence is furnished, it being a part of the return itself, in perfect form, and signed by the appraisers. That it was furnished before the setting-off, is also certain ; for the boundaries and description of the land, as well as its price and quantity, are founded upon it, and could not, by any possibility, have been made without it; so that whatever point of time in the proceedings, after the appointment of the appraisers, is assumed as that at which the land is set of, it must have been posterior to being furnished with the appraisement. But the counsel contended strenuously, that the land is never set off (or “ set out,” as the language of the statute is,) until the whole business is consummated, by the final return of the officer to the clerk’s office : In other words, the setting out of the land is not accomplished but by the concurrence of all the acts necessary to be done, the last of which is the return to the clerk’s office. Stat. 58. s. 77. There is no delivery of possession, either actual or symbolical; and no point of time before the final act of return can possibly be assumed as that at which the title passes. A deed, how complete soever in all its parts, conveys no title until delivery ; and an execution transfers none until the levy is completed, by the final return. The certificate of appraisement was certainly furnished before this event; for it is part of what is returned by the officer. Further, it is not only part of what he returned, but it is, strictly, a part of his return. By annexing it to the account of his proceedings, (in technical language called his return,) carrying it, so annexed, to the clerk’s office, and causing the whole to be recorded together, he adopted it, and made it a part of his written statement. In Williams v. Amory, 14 Mass. Rep 28. Ch. J. Parker, in delivering the opinion of the supreme court of Massachusetts, says, “ the certificates of the magistrate and of the appraisers may become a part of the sheriff’s return ; and in case of an insufficient certificate by him, may supply the defect” In Brace v. Catlin, it was decided, by this Court, that the certificate of the magistrate made apart of the officer’s return. The only difference between that case ancTthe present, in relation to this point, is, that there the certificate was inserted above the officer’s name, and here it is placed below. Can this circumstance vary the effect of the instrument ? Is not the certificate as much adopted by the officer, and made a part of his account of the proceedings, in one case as in the other ? In the case of a mortgage deed, does it make any difference whether the defeasance is inserted above or below the signature of the grantor ? If entered even on the back of the instrument, would it not still be a part of it ? Ia the case of a will, does it make any difference whether the testator writes his name at the top, or the bottom, or in the margin ? An officer levying an execution is required by law to indorse his bill of fees on the same ; which must be authenticated by him as fully as any other part of his return ; and yet the universal and invariable practice has been, to enter the bill of fees below the signature. Who ever doubted the correctness of this course ? Ch. J. Hosmer and Judge Peters were of opinion that the officer’s return shewed no legal transfer of title: Judges Lanman and Daggett thought otherwise* Brace against Catlin. This was an action of ejectment for a tract of land in Ilarwinton; tried, on the general issue, at Litchfield, February term, 1813. The land demanded was formerly the property of Nathaniel Brace ; and the plaintiff claimed title, by virtue of the levy of an execution in his favour against Nathaniel Brace, on the 12th of April, 1810. In support of this claim, the plaintiff offered in evidence an authenticated copy of the execution referred to, and of the officer’s return thereon. The latter was as follows : “ Litchfield county, ss. Harwinton, 12th of April, 1810. Then with this execution I repaired to the last usual place of abode of the within-named debtor, and made search for personal estate whereon to levy this execution, to satisfy the same and my fees, but could not find any ; neither could I find the body of said debtor within my precincts, by the most diligent search. On said 12th day of April, the creditor ordered me to levy said execution on one certain piece or parcel of land, lying in said Harwinton, as the debtor’s property. 1 then made application to Benjamin Griswold, Esq., as the next justice of the peace, to appoint two lawful freeholders of said town of Har-winton ; and said justice appointed Israel Smith and Roswell Alford, freeholders of said town ; and the creditor appointed Benjamin Ames, a f reeholder of said Harwinton ; and they appraised the following described piece or parcel of land as the debtor’s property, [describing the land in question by metes and bounds] containing five acres, three roods and twenty-five rods of land, at eighteen dollars per acre, amounting to 106 dollars and 26 cents. “ We the subscribers, being appointed to appraise the above described piece or* parcel of land according to law, have appraised the same according to said description above mentioned. Israel Smith, Benjamin Ames, Rosiccll Alford. “This certifies, that I, Benjamin Griswold, Justice of the peace for Litch-field county, on said 12th day of April, 1810, on application of Uriah Hopkins, constable, administered the oath provided by law to Benjamin Ames, Israel Smith and Roswell Alford. Benjamin Griswold, Justice of Peace. “ And on said 12th day of April, 1810, I put the within-named creditor in possession of the above described land ; whereof my fees are— [Here follows a list ofitems, amounting to 13 dollars, 44 cents.] Uriah Hopkins, Constable. “Received, Harwinton, April 12th, 1810, the above described land in full of the aforesaid execution. James Brace. “ Received and recorded, April 13th, 1810. Teste, Elijah Gaylord, Register.” In connexion with this evidence, the plaintiff offered to prove, that Nathaniel Brace had resided out of the limits of the United States more than twenty years, and had not been within this state within twenty years. To the admission of the evidence thus offered by the plaintiff', the defendant objected ; but the court decided that it was admissible, and it accordingly went to the jury. The defendant claimed title to the land, by virtue of an adverse possession of more than twenty years. The plaintiff resisted this claim, on the ground that the defendant took possession, and had continued in possession under a deed from Nathaniel Brace, dated the 11th of November, 1788, which was fraudulent and void, as against the creditors of the grantor ; and to prove the alleged fraud,the plaintiff offered in evidence certain declarations of the defendant made in the year 1788; to the admission of which the defendant objected. The court admitted the evidence ; and instructed the jury, that if they should find the conveyance from. Nathaniel Brace to the defendant fraudulent, as claimed by the plaintiff, no length of possession by the defendant holding under such fraudulent deed, could give the defendant a title by possession, against the the title of a bona fide creditor to Brace. In the course of the trial, there were some other questions of law raised, and decided in favour of the plaintiff, which it is not now material to state. The plaintiff obtained a verdict; and the defendant moved for a new trial.. Bacon, in support of the motion, after remarking, that in this state land is made liable to execution by statute merely, and to acquire a title by execution, the requisitions of the statute must be strictly complied with, contended, 1. That the return is defective, because it does not state, that the execution was ever levied on the land. 2. That the return is defective, because it does not state, that the land was appraised by three indifferent freeholders. That the appraisers should be indifferent, is a statute qualification as indispensable as that they should be freeholders. Slat. tit. 63. c. 1. s. 7. p. 282. ed. 1808. 3. That the return is defective, because it does not shew, that the debtor neglected to choose an appraiser; and consequently, that the justice had no authority to appoint. This precise objection was taken, and held to be fatal, in Eddy v. Knapp, 2 Mass. Rep. 154. The force of this objection was felt, on the trial, by the counsel for the plaintiff and byj.he court ; and it was then considered fatal, unless it could be removed. This was attempted, by offering parol evidence to prove, that the debtor had not been in this state for twenty years. But parol evidence to help out an officer’s return, is inadmissible. The title which a creditor acquires to land, by virtue of an execution, is a record title; and, from its nature, the record must be complete. It cannot be supplied by extrinsic averment or parol proof. But if parol evidence is admissible to aid the return, or even if the officer had inserted in his return, that the debtor was not within the United States, it would not have been sufficient. This would not be equivalent to saying, that the debtor neglected to choose an appraiser. The averment may be true ; and yet the debtor might have had a known agent here specially authorized to choose an appraiser. 4. That the court erred on the trial, in admitting the parol declarations of the defendant, made twenty-five years before, to destroy the effect of an uninterrupted possession of the land from that time to the present. No reliance can be placed on evidence, which depends upon the recollection of witnesses after the lapse of such a period. Our statutes of limitation are founded on this principle. Expedii reipublicce ut sit finis litium, is a maxim of the common law, which cuts off all stale demands. Sound policy forbids, that an antient deed, accompanied with an uninterrupted possession of more than twenty years, should be attacked and destroyed, by parol evidence. Could and Sherman, contra, insisted, 1. That it was not necessary for the officer to say, in totidem verbis, that he levied the execution on the land ; it being sufficient, if from the whole return, it appears, that this was done; and that it does so appear in this case, is beyond doubt. 2. That the return was sufficient in regard to the qualifications of the appraisers. The officer applied to the justice to appoint lawful freeholders ; on this application he appointed two of the persons who acted as appraisers. In connexion with this, the return says, that the creditor appointed another. It is not necessary to specify the qualifications and the mode of appointment in detail. In Sedgwick v. Waterman, 2 Root, 434. the return was, that tho appraisers were legally appointed and sworn, but did not shew how they were appointed ; yet the court held this to be a sufficient return. 3. That the want of notice to the debtor to appoint one of the appraisers, did not vitiate the levy. It appears from the face of the return, that the debt- or had absconded, and could not, by the most diligent search, be found within the officer’s precincts. This was a good excuse for want of notice ; for les neminem cogit, &c. But it is said, that parol evidence was admitted to eke out the return ; and this is made an additional ground of objection. In the first place, if the return shewed a sufficient reason for the omission complained of, the parol evidence offered did no hurt, and a new trial will not be granted for its admission. But secondly, the evidence was proper to obviate the defendant’s objection. It was, at any rate, consistent with the return. Such evidence has been frequently received on the circuits. Jackson v. Burr, and Jesup & al. v. Batterson, in Fairfield county. 4. That a grantee under a fraudulent conveyance, cannot acquire a title by possession against the creditors of the grantor. This point was settled in Beach v. Catlin, 4 Day, 284. 5. That it is competent to a creditor, in a suit against such grantee, to shew the alleged fraud or trust, by parol evidence, at any time. Smith, J. It appears from the defendant’s motion for a new trial, that a. variety of questions were made in the court below, which have not been started before this Court. The plaintiff claims title to the land in question, by virtue of the levy of an execution against Nathaniel Brace ; and the defendant’s counsel insists, that the officer’s return upon the execution is irregular and incomplete, and affords no sufficient evidence of title. If the law requires all the facts necessary to constitute a title under the levy of an execution to be stated in the return of the officer, with the technical precision of special pleading, I should admit, that the present return is insufficient. But no such strictness has ever been required ; and certainty to a. common intent has always been deemed sufficient. When, therefore, I look over this return, with a view to put that rational construction upon it, which we always feel ourselves at liberty to put on other written instruments, I dis. cover clearly, that the execution has been levied on the land, though the word “ levy” is not used in the return. J discover, also, that all the facts necessary to complete a title have been substantially stated, by the officer and the justice whose certificate has been incorporated by the officer with his, and makes a part of the return. It was said in argument to bo an objection to this return, that it does not appear from it, that notice was given to the debtor to choose an appraiser. But from the facts which do appear, this was impossible ; for the officer states in his return, that the debtor could not be found within his precincts ; and it appeared in evidence, as the motion states, that the debtor was actually without the limits of this state, during the whole life of the execution. This was not a case, therefore, which required notice. The other Judges were of the same opinion, except Mitchell, Ch. J. and Ikqersoll, J., who dissented. New trial not to be granted. [MAJORITY — Daggett, J.] Daggett, J. Several objections have been raised against the validity of the officer’s return, which will now be considered. Here I admit the principle advanced by the counsel, and adopted by those members of the Court who dissent from the opinion to be given, that every requisite to a valid levy must appear on the return, by express words, or by reasonable construction. 1. It is suggested, that several items in the bill of fees charged by the officer, and for which, as well as for the debt, the land was taken, were not provided for, by the statute on this subject. This is true ; and were this a fatal objection, still it is removed by the confirmatory act of May, 1826. That this act is constitutional, and did embrace this precise objection» was decided, by this Court, in the case of Beach & al. v. Walker, 6 Conn. Rep. 190.; and the principle ofthat decision was recognized recently, at Hartford, in the case of Norton v. Pettibone & al. 7 Conn. Rep. 319. 2. It is said, that the officer has not returned, that he could not find any personal property whereon to levy, &c. He has certified, that he demanded of two of the debtors in person, and of the other at his usual place of abode, money to pay the execution, or personal property whereon to levy, and a refusal of the debtors to pay the execution or expose property. What moré could have been done? Was he bound to search for property further ? In the absence of all proof that personal property of the debtor might have been found, upon the exercise of any reasonable diligence, the officer has done his duty, or at least, he has done enough to shut the mouth of the defendant, according to the 74th and 76th sections of the statute above-mentioned. Let it be remembered, that the debtor, Thompson Booth, whose land was taken, sets up this objection, 3. It is objected, that by this return, it does not appear that the land was set off to the creditor. The answer is, the land was levied upon, and the right and title of the defendant was appraised, and that was set off. This is a statute conveyance of the land. The right and title to land is the whole of the land. It gives to the plaintiff the right to the use, occupation and disposal of it, and of course, the entire ownership of it. Co. Litt. 145. b. Hitchcock v. Hotchkiss, 1 Conn. Rep. 470. Camp v. Smith, 5 Conn. Rep. 80. 4. It is not alleged, that the justice of the peace, who appoint-ad an appraiser, could judge between the parties. Who ever supposed before, that such an allegation was necessary ? It might, with as much propriety, be contended, that it should appear that he was not insane by the visitation of God. It is never necessary, in pleading, to negative the exceptions which may exist against a judge or justice, before whom a suit is commenced. There are two other objections, which deserve more consideration. 5. It is insisted, that it should appear, by the officer’s return, that the appraisers were indifferent freeholders of the town in which the land lies. I concur in this opinion. The statute requires, that where land is set off on an execution, it should be appraised by indifferent freeholders of the town where it lies. The officer, as is agreed, has certified, that they were “ freeholders of the town.” The only question then, is, does it appear that they were indifferent 1 Now, they have given to the officer a certificate that they were thus indifferent; and he has annexed that certificate to his return, and procured it to be returned and recorded in the office of the clerk of the court. This is an adoption of their certificate, and a virtual averment that they were indifferent freeholders. The Chief Justice, in delivering the opinion of the Court, in Pendleton v. Button, 3 Conn. Rep. 406. says : “ The act of the justice in appointing and swearing an apraiser, implies that he is indifferent and unexceptionable.” The officer has annexed not only (he cerii-ficate of the appraisers above-mentioned, but also the certificate of the justice, that he appointed and administered the oath to those named appraisers. The officer, moreover, has certified, that the appraisers were appointed and duly sworn according to law. This brings this case within the principle of Pendleton v. Button. The idea that these certificates, thus appended, would remedy the defect in the officer’s return, is also fully recognized, by the supreme court of Massachusetts, in the case of Williams v. Amory, 14 Mass. Rep. 28. 29. 6. The last objection is, that it does not appear by the return of the officer, that the appraisers delivered a certificate of their appraisal to the officer, or that they ever made any such certificate ; and this objection is said to bring the case directly within the decision of Metcalf v. Gillet, 5 Conn. Rep. 400. I do not so consider it. In that case, no mention was made, by the officer, of any certificate of appraisal. No certificate was appended or annexed ; nor was any intimation made, that one was ever given. To supply this defect, parol evidence was offered, to shew, that such certificate was made by the appraisers. This was very properly rejected. In this case, the certificate made by the appraisers, is annexed to the return, and by the officer lodged with the clerk. A copy is now of-, fered of the whole from the clerk. By fair implication, then, this certificate was in the possession of the officer. But it is said, that it must have been in his possession, by delivery of the appraisers, before he set off the land ; for the statute is, that “ thereupon (i. e. upon the certificate’s being delivered to him) he shall set out to the creditor,” &c. Suppose this to be the true construction of the act, I insist, that it is but a reasonable construction of his return, that he had it before he set out, or set off, the land ; because he could not set it off before he knew its value, and he could not know its value but by the certificate of the appraisers ; but he did set it off, knowing its value ; for he asserts its value in his return. Then take for a guide a plain rule of law, that every man acting officially, shall be presumed to have done his duty until the contrary appears ; it ought to be presumed, that this certificate was delivered to him before he set off the land. Thus it would stand upon the most rigid construction of the statute. But it is difficult for me to see any force in the sug-gestión, that these acts of the officer ought to appear to have been done in any certain consecutive order, The land is transferred when certain acts have been done. These acts, if done at all, will be presumed to have been done in the order required by the statute, unless the contrary appear. Omnia pressu-muniur rite et solenniter esse acta. Again ; for what purpose Were these certificates annexed by the officer, and carried to the clerk to record, except as parcel of his doings — his return ? By that act, he adopted them, and virtually attested them. It it is quite immaterial whether his attestation preceded or followed those certificates. In either case, he must be deemed to have sanctioned them. In view of the whole ground presented in this case, I am well satisfied, that the officer’s return is sufficient ; and that this advice be given to the superior court. Williams and. Bissell, Js. were of the same opinion. [CONCURRENCE — Hosmer, Ch. J.] Hosmer, Ch. J. I have the misfortune to differ from the Court, in this case. I should content myself with the mere declaration of my nonconeurrence, were I not persuaded, that some of the principles advanced tend to jeopardize the title to land, and to produce general inconvenience. From the officer’s return it does not appear, that the land levied on was appraised by indifferent freeholders ; nor that before the land was set out, an appraisement in writing was made and delivered to the levying officer. Both these are indispensable requisites to a legal title. It was correctly said, in Hobart v. Frisbie & al. 5 Conn. Rep. 592. 595. that “ the acquisition of real estate by execution is derived from statute ; it is in derogation of the common law, and is stricti juristhat “ the rigid rules of the summum jus ought to be enforced, and an omission of any statute requisite is fatal.” To the same effect was the opinion of the court in Williams v. Amory, 14 Mass. Rep. 20. 29. The return of the officer on the execution is the legal and only evidence that the prescriptions of law have been complied with. If that is deficient, it never can be aided, by oral testimony, probable presumption, or in any other manner. Like other legal instruments, it is susceptible of construction ; but this is made only by giving to the words of the return their plain popular meaning, and assuming any fact that appears by a strictly necessary inference. Hobart v. Frisbie & al. 5 Conn. Rep. 400. Fisher v. Blight, 2 Cranch, 390. Curtis v. Hurlbut, 2 Conn. Rep. 315. Williams v. Amory, 14 Mass. Rep. 20. That the return of the officer preceding his official sigpa-' ture, affirms the indifference of the freeholders, or the delivery to him of a written appraisement, does not admit of a plausible pretence. On both these subjects it is profoundly silent. Its invalidity, therefore, is unquestionable, unless it derives aid from certain certificates recited and annexed to it, after the signature of the officer’s name, with his official capacity subjoined. The return was made and signed in the usual form, comprising all the necessary facts, except those before-mentioned. The land is then set out in the accustomed manner. A certificate of appraisement, bearing date the 6th of January, 1826, declaring, that the appraisers are indifferent freeholders, next succeeds. After this is subjoined the justice’s certificate of the administration of the oath, on the 19th of December, 1825 ; the entry of the register, that on the 10th of January, 1826, he received the execution for record ; and that of the clerk of the superior court, that on the 14th of the same January, the execution was returned into his office. These entries and certificates, not referred to by the officer, are all that appears. I am of opinion, that the certificates before-mentioned, are no part of the officer’s return ; and if they were, that they would not aid the defects alluded to. 1. The usual mode of authenticating an officer’s return, for centuries, has been, by the subscription of his name, and the expression of his official character. The return has always been subscribed or signed ; words in relation to this and other legal instruments, of equivalent meaning. I have never heard or read of a valid return, not signed or subscribed. This signature is, invariably, at the close of a return, and of all other legal instruments, except those under the statute of frauds ; and to those I am prepared with a distinct answer. Whether the instrument is a deed, a bond, a covenant, or a return, the invariable usage has been, as far back as legal muniments reach, to authenticate them, by subscription. I am not aware that an instance to the contrary has occurred, except the practice under the statute of frauds. From this uniformity of usage, the expression that a contract or a return was signed, has hitherto conveyed to the mind an idea as perfectly defined and unequivocal as language can impart, I admit, that by usage, any mode of authentication may be sanctioned. But I assert, that no usage has ever existed except the one before-mentioned. It was said in the argument, ^hat the signature of an officer, whether in the midst, between the formal return and the certificates subjoined, or any where else, sanctioned the whole as being his indorsement. In support of this assertion, neither dictum nor case was adduced, except the one of Williams v. Amory, 14 Mass. Rep. 20. 28. That this decision yields no support to the position advanced, is clear beyond a question. The certificate preceded the sheriff’s return, and was conformable to usage. It is called, by Ch. J. Parker, “ the old practice.” That the official signature of an officer should be considered as running back beyond the return, and embracing preceding certificates, is in perfect analogy with the doctrine that it is the subscription which authenticates. But from this it must not be inferred, that it runs forward, and without the aid of general usage. It was said by the court, in the case just cited, that “ it might be convenient to continue the old practice ; (that is, of preceding returns by certificates ;) “for those certificates may become a part of the sheriff’s return, and in case of an insufficient certificate, may supply the defect.” The language is very guarded. It is not, that a certificate prefixed is a part of the return ; but that it may be. Undoubtedly it may, by express reference, or by established and unequivocal usage ; and in the case, there is nothing incompatible with this, as being the intention of the court. It has been said, that the certificates were subjoined with the intent of making them a part of the return. This assertion, in my opinion, is wholly gratuitous. The intention is a question of fact; and how is this court, a court of law exclusively, to determine it ? It has not the competency, because it has not the means of determination. The certificates may have been annexed as paramount evidence, to sustain the officer’s return, in case it should be controverted ; and for this sole purpose. Hence it is not a necessary inference, that they were intended to be a part of the return. It was, however, asserted in the argument, that the intention claimed, appears by probable presumption. But is this court competent to settle the fact, if it presumes it to be probable ? Certainly not. In short, whether the certificates were subjoined for one purpose or for another, is a mere matter of fact, and beyond the competency of this court, unless the inference is strictly a necessary result. Metcalf v. Gillet, 5 Conn. Rep. 400. On the point in question, this will not be pretended. On the contrary, there is much reason for the assertion, that the certificates were appended to render the evidence of certain facts prominent, and not to eke out the return. No officer possessing common sense, makes a return that he believes to be defective ; and when the return is perfect, — that is, in ninety-nine cases out of a hundred, — the preservation of evidence is, necessarily, the only object. In the argument it was said to have been an universal practice to annex to an officer’s return on an execution, the certificates of appraisers, and of their appointment and oath. If this were the fact, it would be of no avail, unless it was intended to make them a part of the return. But the fact is not admitted ; and for two reasons. In the first place, as clerk of a court, I formerly recorded many executions, and to much the greater part of the returns no certificate was subjoined. I now have in possession a book of recorded executions, consisting of more than a hundred; and on recurrence to them, I have found that more than one half are without a certificate appended to the returns. From this specimen, as well as from general recollection, I am satisfied, that the object was merely the preservation of evidence ; and judging from the known characters of the officers, I am convinced that the extremely careful and apprehensive alone resorted to this expedient. In the next place, I cannot admit the competency of the court to settle this question of fact. It is of a private nature, of which the court cannot, ex officio, take judicial cognizance. 1 Chitt. Plead. 217. What the usage of officers has been throughout the state, I neither know, nor, sitting here, have the means of knowledge. Usage, like most other facts, might be established by evidence ; and the instances to support it must be not few or partial, existing in one or two counties only, or with one or two officers only ; but there must have been a long, regular and general practice. 2 Marshall, 393. When such an usage has been established, by the decision of this court, it may then be recognized without proof; but not before. It was observed by the plaintiff’s counsel, that in cases under the statute of frauds, by numerous decisions, the person promising may sign in any part of the instrument. The principle was stated imperfectly. Courts have held, that the signing of an act or contract required by the statute of frauds, must have the effect of giving authenticity to the whole instrument; and when the name is inserted in such a manner as to have this effect, that it does not much signify in what part of the instrument it is found. Hawkins v. Holmes, 1 P. Wms. 770. Newl. 173. Sugden 54. Hence the name of a testator in the introductory clause of a will, or of a person in the commencing clause of an agreement, has been deemed an authentic signature. The doctrine has been carried much further. A subscription as a witness, with knowledge of the agreement ; (Welford v. Beazely, 3 Atk. 503. Coles v. Trecothic, 9 Ves. jun. 234.) and a bill of parcels in which the vendor’s name is printed, has been held a sufficient signing. Saunderson v. Jackson & al. 2 Bos. & Pull. 238. Schneider & al. v. Norris, 2 Maule & Selw. 286. But I should be very unwilling to apply these determinations to instruments at common law, and reversing the established usage hitherto, to hold, that a bond, covenant or return may be signed at the top, at the bottom, in the middle, in the margin, or in the place of a witness. To the decisions under the statute of frauds, in their application to this case, I have two objections. In the first place, they never ought to be extended by analogy. So far as they have gone, with some reluctance, I would follow them ; but there I would stop. They had their origin in a boundless latitude of construction, in subversion of language the most clearly defined by familiar usage ; a construction most unwisely indulged in relation to a very beneficial law ; a construction that has impaired, and threatened to destroy the guard which it was the purpose of the law to provide. The word signing, taken in its ordinary popular sense, is a complete key to all the other terms in the clause concerning devises ; and yet the construction of this material term has been quite contrary to its import and received interpretation. Powell, in his Essay on Devises, p. 63. has said : “ The word signing conveys to a common ear, not versed in technical reasoning, a mere simple idea, viz. the writing of the name of the agent at the bottom of the act, thereby formally authenticating it as his. It requires, (he adds,) the ingenuity, therefore, of a schoolman, so far to wrest this word from its natural sense, as to construe it to mean the recital of a name in any part of an instrument, where common form or accident may happen to introduce it. Nothing but the strong bent of the times in favour of this mode of alienation, which equally pervaded the courts of law and the people, and which had induced that loose construction of the word writing in the statute of wills, that rendered the statute of frauds necessary, could have given colour to the argument in favour of such a construction. But the disposition to encourage alienation by wills, prevailed so much, at this period, that the ingenuity of the advocate in explaining away, by construction, the excellent provisions made by this clause to prevent fraud, could only be equalled, by the avidity with which courts received and supported such exposition.” In the second place, I observe, that the cases determined under the statute of frauds, are not analogous to the one under discussion. When a person begins his last will, by saying, “ I, A. B., make this my last will and testament,” or commences his contract, by the assertion, “ I, C. D., promise in manner following,” the nature of the cases, independent of usage, would seem to indicate, that the whole of the writing, of which the name is a part, should constitute the will or agreement intended. They may be said to form one continuous and inseparable instrument. But when a return is made and officially subscribed, it is perfect, complete and exclusive. Certificates subjoined, without any reference to them, are separate instruments, having with each other no necessary connexion, and the signature of the return implies no intent, that it should likewise be a signature of the certificates. If all was intended to make one return, why does not the officer say so ? There is no ground for applying the observation on which the determinations under the statute of frauds rest, that the name was designed to give authenticity to instruments thus distinct and disjoined. Here, again, has occurred an argument founded on probable presumption ; an unusual argument in reference to a return, which the law requires to be certain and complete, either per se, or by express reference. This Court is incompetent to settle a fact, on probable evidence. It is the converse of the established rule, that in a return every necessary fact must appear by a fair construction of the expressions used ; and that the exposition of it cannot, operating as it does in invitum, outrun the meaning of its words. Metcalf v. Gillet, 5 Conn. Rep. 404. I entertain no doubt, that the recited certificates are no part of the officer’s return. 2. If, however, they are considered as part of the return, the return still is incurably defective. That the written appraisment reached the hands of the officer as early as the 10th of January, is admitted ; for, on that day, he caused it to be recorded with the execution. But it appears neither by averment nor inference, that he received it before that day; whereas on the 6th of January, he set out the land. It was said in the argument at the bar, that the certificate bearing date on the 6th of January, it is a presumption, that it was delivered at its date. What presumption, I ask; — of fact, or of law ? Not of fact; for, at most, it is a probable presumption, which this Court has not the competency to draw. Neither is it a presumption of law. The presumption lies the other way ; for the law has established, that the return of the officer is the requisite evidence, and that it authorizes no inference, w'hich is not strictly necessary. If it be enquired, why this rigour ? I answer, because it is within the power and it is the duty of the officer to speak intelligibly, and to the point. Besides, the person whose land is taken from him, by the strong arm of the law, and creditors who have an interest in the question, have a right to demand clear and undoubted evidence, that every requisite of the law has been observed. For these reasons, it stands on very different ground from the date of a bond, note or other contract. In respect of these, the contractor will take care of himself; and so far is this principle carried, that the construction, if there be any ambiguity, shall be taken most strongly against him. I, then, assume these facts ; that the land was set out on the 6th of January, and that the appraisment was not delivered to the officer until four days afterwards. The statute requires, in so many words, that the estimate of the value of the land shall be delivered to the officer, “ who shall thereupon set out the land to the creditor.” Sect. 76. p. 57. In Metcalf v. Gillet, 5 Conn. Rep. 400. this Court decided, that “ until the officer is possessed of the appraisers’ certificate, duly executed, he cannot set out the land on execution and in Bill v. Pratt, 5 Conn. Rep. 123. the same point was adjudged. In opposition to this reasoning, it was, first contended at the bar, that as the appraisment bears date on the 6th of January, the Court will presume that it was delivered on that day. I have endeavoured to answer this position, and to show that the Court cannot presume the fact; that the presumption of law is against it, by its requisitions of a certain return ; and that the debtor can be deprived of his land, only by a return, clear, explicit, and as to every material fact, amounting to a necessary inference. May not a return bear date on a certain day, and be delivered on a subsequent, day ? How then are we authorized to presume a fact, when the materials of a just presumption are not before us; and a fact, too, which the officer is bound to affirm ? It was next contended, that the setting-out of the land is no one particular act; but that it is a general proposition, comprising all the acts necessary to make out a title ; of consequence, that it is true, only when the last act creating the title has taken place. This cannot be correct. The officer never sets out the title : it is the law that conveys it. The facts required must appear from the return ; and then the title results as a legal consequence. The expressions of the statute on this subject, are too clear to be mistaken. On the reception of the certificate of ap-praisement, the law declares, “ that the officer shall thereupon set out to the creditor, by metes and hounds, so much oi the lands as may be sufficient,” &c. It is the land that is to be set out; and that is made the object to which the expression refers. The land is to be set out in fact to the creditor ; that is, it is to be located and indentified. But how is this to be done ? The statute declares, expressly, “ by metes and bounds.'” The meaning of the expression set out, when applied to substance, is, “ to assign, to allot, to mark by boundaries or distinctions of space.” Webster’s Diet. And when the mode of setting out is prescribed to be by “ metes and bounds,” the intent of the legislature is unfolded with the irresistible force of demonstration. The time when this is to be done, discloses the reason of the requisition. It is immediately after the reception of the appraisers’ estimate of the value of the land. Before this, the officer has not the means of determining what quantity of the land must be set out. He now has the means; and “ thereupon,” he is required to do the act, identifying the land requisite, by visible monuments. Such is the plain expression of the statute; and such has been the invariable construction. It is to be found in all the returns made on executions. They declare, that on a certain day, the land was set out; and it was well understood, by the levying officer, in this case. “ I da thereupon,” says the officer in his return, “ on this 6th day of January, 1826, by virtue of this execution, hereby set off to the creditor, &c. the above-described piece of land.” The cases of Bill v. Pratt and Metcalf v. Gillet, before cited, fully recognize and assume the meaning I have given to the words commented on. It was, lastly, claimed by the plaintiff’s counsel, that admitting the land to have been set out on the 6th of January, the subsequent proceedings of the officer validated the levy, by recognition. I cannot admit this principle. It is the return that gives validity to the levy, and not the subsequent parol recognition of the officer. As applicable to this subject, the principle is altogether new. That a person, by ratihabition, may bind himself in a contract, made for his benefit, as if there had been a precedent command, is not disputed ; and for this plain reason, that the law has prescribed neither the mode nor the time of declaring his assent. But in the law regarding the levy of executions, this principle has no place. Facts must be returned with certainty, authenticated by an artificial signature ; and they must be true at the time when the return is subscribed. This is established law ; and a deviation from it, to meet a particular mischief, which may be productive of general inconvenience, in my opinion, is entirely inadmissible. I may be permitted to doubt whether there is any mind of so long and sure a reach as to be able to anticipate the consequences of such a change. In the expression of my opinion, I am sensible, that I have run to a great, and, perhaps, unreasonable length. But I have been induced to it, by the desire of preserving, so far as is within my power, what I consider to be principles, long and wisely established. The branch of the law relative to returns, is very antient; and it is may ardent wish, that its certainty and simplicity may not be impaired. In this subject the community has a deep stake. It is, comparatively, of little inconvenience to require rigid strictness in the returns of officers on executions. The provisions of the law in relation to their levy are few, simple and easily complied with, except by those, who neglect to read a single section, that concerns the performance of their duty. On the other hand, if persons who search the records of land titles, to ascertain the validity of a levy, cannot rely on the plain meaning of familiar words, authenticated by an official signature, but are driven to investigations, which require the learning and talents of a profound lawyer, I am very apprehensive, that great inconvenience will result. Peters, J. was of the same opinion. Return sufficient.