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.
*369That 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 ex*370cept 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 as*371sertion, 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 instru*372ment 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 *373in 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 *374day, 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, *375explicit, 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 *376Metcalf 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.