delivered the opinion of the Court at the ensuing June term in Penobscot.
By the statute, directing the issuing, extending, and serving of executions, Stat. 1821, ch. 60, sec. 3, it is provided that the party, obtaining judgment in a civil action, shall be entitled to have his execution thereon, at any time after the expiration of twenty four hours, after judgment rendered. .Now as in the course of judicial proceedings, the days only are rioted, and not more minute divisions of time, unless other proof is admissible, the direction of the statute would bo rendered ineffectual, whenever the execution bears date the day subsequent to the rendition of judgment. A defendant, against whom an execution issues, at an earlier period than the law permits, ought to have some mode of relief. Suppose he moves to set aside an execution, thus irregularly issued, if he is not allowed to prove the fact, he can take nothing by his motion. It would *210seem therefore that such proof must be admissible, in order to give effect to the law. It does not contradict the record. The execution may bear date'the day following the judgment, and yet hav'e been issued within less than twenty four hours after its rendition; But it is said the counsel for the defendant in the action upon which the execution in question issued, waived his right to have it staid for that period. He argued that it might be post dated, and that the counsel for the plaintiff might receive it, on the day judgment was rendered 5 and it does not appear that more was intended by his assent. The practice of post dating, may be convenient for counsel, who are desirous of carrying with them their executions, on their return from court; but it is attended with hazard. If the clerk refused in all cases to let them go from his office, until the twenty four hours had elapsed, such a difficulty, as is now presented, could not arise. The legal presumption being, that every thing is correctly and legally done by official agents, an execution, bearing date the day following the judgment, will be presumed to have issued according to law, and would not be suffered to be impeached against persons, not parties or privies to any irregularity, such as is now under consideration. Purchasers should be secure in their titles, who buy without notice of such irregularity, where every thing appears by the record, to have been legally conducted. Whether tuis objection can be taken collaterally, or whether only directly, upon motion to set aside the execution, we do not decide, because we ar® of opinion, that there is a fatal defect in the levy, upon another ground.
■ The first act to be done by the officer, in extending an execution upon real estate, is, to cause three disinterested freeholders to be sworn as appraisers. The statute points out how they are to be designated,' in which the creditor, the debtor and the officer have a part to perform ; but the duty of causing them to be sworn is the first, which is specially and’distinctly enjoined upon the officer. We are of opinion, that until this is done, the levy cannot be considered as commenced. Indeed it might not be going too far to hold, that the first step in extending an execution upon any particular real estate is, when it is shown to the appraisers; for there is no designa*211tion of the land to be appraised, in the oath administered. The authorities, cited by the counsel for the demandants, sufficiently show that the return of the officer, whether true or false, is conclusive as to wliat is done under the execution ; and is the only evidence, which can be received. But it is not evidence of the time of the decease of the judgment debtor. That is a fact which may be proved in pais. In the present case it is agreed, that the judgment debtor deceased on tbe twenty seventh day of April, 1831. By the officer’s return it appears, that the appraisers were not sworn, until the thirtieth of the same month. It results that the levy upon the land in question, not having been commenced until after the decease of the judgment debtor, was not effectual to transfer the title from him to the judgment creditor. The demandants making claim only as devisees under him, there must b.e
Judgment for the tenants.