officers, or if without officers any stockholder resides, four days before the day of sale; and if there is no newspaper printed in any such county, then in the State paper.21

19. In the sale of such franchise, whoever will pay and satisfy such execution, all fees, and incidental expenses, in consideration of being entitled to receive to his own use all such toll as the corporation is entitled to receive, for the shortest period of time, shall be deemed the highest bidder, and the purchaser for such period of time; and immediately after such sale, the officer shall deliver to him possession of the toll-houses and gates, in whatever county situated, and state his doings therein in his return.2

22

20. The purchaser of such franchise, and those claiming under him, may receive to their own use the tolls accruing within the time limited in the purchase, and shall have all the powers of the corporation necessary for the convenient use of the property, and be subject to the same duties and penalties during the term of said purchase, and may recover of said corporation any moneys paid or expenses incurred in consequence of such liability, and without their fault or negligence.28

21. The corporation, at any time within three months after the day of sale, may redeem said franchise by paying to the purchaser the sum he paid in satisfaction of the execution, with twelve per cent interest thereon, in addition to the toll he has received.24

22. If goods or other property sold on execution have been attached by other creditors or seized on other executions by the same or another officer, or if before payment of the residue to the debtor, any other writ of attachment or execution against him is delivered to the officer who made the sale, the proceeds shall be applied to the discharge of the several judgments, in the order in which the writs of attachments or execution were served; and the residue, if any, shall be paid over to the debtor.25.

23. If a share in a corporation or other property, that may be attached without taking and keeping possession thereof, is attached or taken on execution, and is subsequently attached or taken on executiou by another officer,

21 R. S. c. 84, § 17.-22 R. S. c. 84, § 18.-23 R. S. c. 84, § 19.-24 R. S. c. 84, § 20.-25 R. S. c. 84, § 21.

he shall give notice thereof to the officer who sells under the first attachment or seizure; and if, without such notice, he pays the balance of the proceeds of sale to the debtor, he shall not be liable therefor to the person claiming under such subsequent attachment or seizure.26

24. When damages are assessed in favor of a person by the county commissioners, or by a committee, or verdict of a jury, for an injury sustained by him by the acts of any corporation, authorized to demand and receive toll, and they are not paid in thirty days after order, or the acceptance of such verdict, or the report of the committee, he may have a warrant of distress against such corporation for such damages, interest, and costs; and the officer holding such warrant may adjourn the vendue, as in the sale of goods on execution; and all proceedings respecting the attachment and sale on execution of the franchise of such corporation, and sales on warrant of distress as aforesaid, may be had in the county in which the creditor, the president, clerk, treasurer, or a director of said corporation, if there is any such officer, if not, a stockholder, resides.27

25. When real or personal estate is seized on execution, and further service thereof is suspended by a prior attachment thereof, such estate shall be bound by seizure until it is set off or sold in whole or in part under the prior attachment, or until it is dissolved, if the officer seizing such real estate, within five days thereafter, files in the office of the register of deeds in the county or district where it lies, a copy of his return of the seizure, with the names of the parties, the court at which judgment was recovered, and the date and amount of the execution; and the register shall file and enter the same of record, as in case of attachment of real estate on writs; and like fees shall be allowed to the officer and register therefor.28

26. If the prior attachment is dissolved, or the estate is set off or sold in part under it, the estate or remaining part thereof shall continue bound for thirty days thereafter by such seizure on execution; and the service of the execution may be completed within that time as if the estate had been then first seized thereon, although the return day of the execution has passed.28

26 R. S. c. 84, § 22.-27 R. S. c. 84, § 23.-28 R. S. c. 84, § 24.-284 R. S. c. 84, § 25.

27. When an officer has in his hands executions, wherein the creditor in one is debtor in the other, in the same capacity and trust, he shall cause one execution to satisfy the other so far as it will extend; if one of such executions is in the hands of the officer, and the creditor in the other tenders his execution to him and requests him so to do, he shall so set off one against the other.29

(d) And it makes no difference that the judgments were recovered in different courts.3)

(e) If an officer declines to make the set-off of executions, which can be lawfully set off, put into his hands with the request to have it done, he will render himself liable; 31 but if there be reasonable apprehension of damage in proceeding to act, he may require indemnity,3 31

28. Executions shall not thus be set off against each other, when the sum due on one of them has been lawfully and in good faith assigned to another person, before the creditor in the other execution became entitled to the sum due thereon; nor when there are several creditors or debtors in one execution, and the sum due on the other is due to or from a part of them only; nor as to so much of the first execution as is due to the attorney in the suit for his fees and disbursements therein.82

29. The officer shall apply the proceeds of the sale of property mortgaged or pledged, after deducting his fees and charges of sale, to the payment of the sum paid or tendered to the mortgagee, pledgee, or holder, and the interest thereon from the time of such payment; and the residue of such proceeds shall be applied to the satisfaction of the plaintiff's judgment as provided by law; or the plaintiff may have the property seized and sold on the execution, as in other cases, subject to the rights and interests of such mortgagee, pledgee, or holder, without paying or tendering the debt due to him.38

30. All executions or warrants of distress against a town shall be issued against the goods and chattels of the inhabitants thereof, and against the real estate situated therein, whether owned by such town or not; and the officer executing them shall satisfy them by distress and sale of the goods and chattels of the inhabitants as pro

29 R. S. c. 84, § 26.-30 Hooper v. Brundage, 22 Me. 460.-31 Leathers v. Carr, 24 Me. 351.-32 R. S. c. 84, § 27.-53 R. S. c. 84, § 28.

vided by law; and for want thereof, after diligent search, which fact the officer shall certify in his return, he shall levy upon and sell so much of the real estate in said town by lots, as they are owned, occupied, or lotted out on the plan thereof, as is necessary to satisfy said precepts and expenses of sale.84

31. He shall advertise in the State paper, and in one of the newspapers printed in the county where the lands lie, if any, three weeks successively, the names of such proprietors as are known to him, of the lands which he proposes to sell, with the amount of the execution or warrant of distress; and, where the names of the proprietors are not known, he shall publish the numbers of the lots or divisions of said land; the last publication shall be three months before the time appointed for the sale. If necessary to complete the sale, he may adjourn it from day to day not exceeding three days. He shall give a deed to the purchaser of said land in fee, expressing therein the cause of sale. The proprietor of the land so sold may redeem it within a year after the sale, by paying the sum for which it was sold, the necessary charges, and interest thereon.35

32. The owner of any real or personal estate so sold, may recover against the town, in an action of assumpsit, the full value thereof with interest at the rate of twelve per cent yearly, with costs of suit; and may prove and recover the real value thereof, whatever was the price at which it was sold.36

(f) The owner of real estate seized and sold on an execution against the town in which it is situated, cannot recover the value thereof against the town, where there has been such a noncompliance with the requirements of the statute, as to the levy and sale, that no title vested in the purchaser. It is not a compliance with the statute, if the officer certify in his return "that the proprietors were mostly unknown" to him. Nor if, from his return, it appears that he adjourned the sale from the sixteenth to the twenty-second day of the month.37

34 R. S. c. 84, § 29.-35 R. S. c. 84, § 30.-30 R. S. c. 84, § 31.-37 Craft v. Elliotsville, 47 Me. 141.

CHAPTER XVII.

TITLE TO REAL ESTATE BY LEVY OF EXECUTION.

1. Real estate attachable, including the right to cut timber and grass as described in chapter eighty-one, may be taken to satisfy an execution, by causing it to be appraised by three disinterested men, one chosen by the creditor, one by the debtor, and the other by the officer having the execution for service, who shall give notice to the debtor or his attorney, residing in the county where the land lies, to choose an appraiser, and allow him a reasonable time therefor, and if he neglects, appoint one for him.1

66

(a) When the officer's return calls the appraisers persons," the term will be construed to mean "men," and not "women.' They need not be residents of the county where the land lies. The term "disinterested" means, as defined in R. S. c. 1, § 3, rule xxii, not related within the sixth degree. One who is a deputy of the same sheriff as the levying officer is not, on that account, incompetent to act as an appraiser. It must appear by the return that the appraisers were disinterested" men. When a judgment debtor was out of the State at the time of a levy, the appointment of an appraiser by his wife, acting as his agent, is valid.

(b) A marine railway, consisting of iron and wooden rails and sleepers, endless chain, gear, wheels, and ship-cradle, and constructed in the usual manner, is a fixture, and will pass by a levy upon the realty.8

(c) A judgment creditor cannot commence a levy on real estate while the debtor is under arrest or imprisoned by virtue of the same or a subsequent execution upon the same judgment.9 All subsequent proceedings of a levy, when there has been no attachment, relate back to the time of its commencement, which is the time of seizure. No particular ceremony is required by an officer in seizing real estate on execution. He need not enter upon it during any stage of the proceedings. 10

(cc) A levy upon real estate by virtue of an execution issued upon a judgment wherein the damage recovered exceeds the amount of the ad damnum, dates from the time of the levy and is effectual to pass the debtor's title to the creditor and his assigns. 10a

1R. S. c. 76. §1.-2Glidden v. Philbrick, 56 Me. 222.-3 Woodman v. Smith, 37 Me. 21. McKeen v. Gammon, 33 Me. 187.5 Grover v. Howard, 31 Me. 546. Pierce v. Strickland, 26 Me. 227.7 Russell v. Hook, 4 Me. 372.-- Strickland v. Parker, 54 Mc. 263.- Clement v. Garland, 53 Me. 427.-10 Fitch v. Tyler, 34 Me. 463.--10 Morse v. Sleeper, 58 Mc. 329.