By statute, tit. “Civil Actions,” p. 4. rev. 1702. it was provided, “ That it shall be in the liberty of any person to take out either a summons or an attachment, in any civil action, against any person, his goods and chattels, and in want of goods and chattels, the lands of the defendant, or his person, may be attached.” In prescribing the forms of writs, the legislature put a construction on this section of the statute: “Attach the goods or estate of N. B. to the value of and for want thereof, take the body of said N. B.”—(Stat. 43.163. rev. 1702.)—thereby giving to the plaintiff the choice of personal or real estate, and the privilege of taking the body, if he did not choose to take land, and could not find a sufficiency of chattels. In all the subsequent revisions, the same phraseology is used, and the same form prescribed. Vide Stat. 3.75. rev. 1750.—3. 84. rev. 1784.—24. 213. rev. 1795.—34. 242. rev. 1821. This statute has been in force, for more than a century ; and in conformity with this construction has been the invariable practice. This works no injury to the debtor, who may, at any time before the levy of an execution, exonerate his inheritance, by paying the debt, or tendering personal estate. Stat. 76. rev. 1821.
But it is said, that the statute of 1821, sect. 5. contains a new and positive direction, that an attachment shall be served, by attaching the goods or chattels of the defendant, or if none can be found, by attaching the person or land of the defendant. If this construction be adopted, there must be a total absence of personal property, to justify taking the person or land of the defendant, or making any other service.
*286The plaintiff having offered in evidence the execution and sheriff’s return thereon, the defendant objected to their admission, because the certificates of the justice and of the appraisers were not recorded in the town-clerk’s office. But it appears from the return, that the sheriff caused the execution, with his doings thereon, to be recorded in the records of land in the town of Colchester; which is all that the law required of him. Those certificates were not his “ doings,” but merely his vouchers ; and the phrase “ town-clerk’s office” is perfectly synonymous with the expression “ records of land in the town.”
The proceedings of the sheriff and the court below are correct. I would not, therefore, advise a new trial.
The other Judges were of the same opinion, except Williams, J. who, being related to a party in interest, gave no opinion.New trial not to be granted.