on which an opinion Two questions only, is necessary, were raised in the case,
The first was, whether the executions were duly levied.
It is admitted, that the levy was legal in every particular but one ; that is, in the appointment of appraisers.
From the return of the officer it appears, that he applied to a justice of the peace, and requested him to appoint two disinterested freeholders as appraisers; and that the justice appointed two freeholders of the town where the land lies. It does not appear from any source, that they were indifferent or disinterested.
The statute concerning the levy of executions, requires, that the land should be appraised, by three indifferent freeholders. And as the levy of an execution on land, is matter positivi le-gis only, no essential requisite to a valid levy can be omitted, and the title be acquired.
We have, then, only to look to the return of the sheriff’s deputy, to see if there has been a lawful levy on the land in question ; for the return must show every thing essential. Thatthe freeholders appointed to appraise the land were indifferent, no where appears; and the omission is of a fact essential and indispensable. It is true, that application was made to the justice, for the appointment of disinterested freeholders; and equally true it is, that freeholders only, whether indifferent or not does not appear, were appointed. If this was the fault of the justice, it makes no difference in the case. The law imperatively demands indifference, as the necessary qualification of appraisers ; and that they are such, must appear from the return, or their appraisment is of no avail. Perhaps the officer, on the credit of the justice’s certificate, might have returned, that the freeholders were indifferent; but this he has not done. If they were not, it never can be presumed, that, on proper suggestion, the justice would not have performed his duty. The case of Booth v. Booth, 7 Conn. Rep. 350., by clear implication, shows the invalidity of the levies; and the same point was determined, by the supreme court of Massachusetts, in Williams v. Amory, 14 Mass. Rep. 20.
There, then, is no doubt, that the executions were not duly levied. The question now arises, whether the plaintiff can maintain the action brought.
The action is case; and the foundation of this action is damnum cum injuria. Paisley v. Freeman, 3 Term Rep. 50.
*54Wk'dt damage has the plaintiff sustained? Here it should be -observed, that if the evidence offered by the defendant was admissible, and undoubtedly it was, it must be assumed that in the lands in question the execution debtor had no title. Now, the most correct levy of the plaintiff’s executions; upon the lands levied on by his direction, which were not the property of his debtor, would have been of no avail. It would háve left him precisely in the place, where he now stands. In both instances, he would have acquired nothing; although by a writ of scire-facias, he may obtain the reissuing of his executions, his judgment remaining unsatisfied and in full force.
It would be the most palpable injustice, to give to the plaintiff damage, when he has sustained none, and so transfer his debt to the defendant, who has done him no wrong.
In the case of Fuller v. Holden, 4 Mass. Rep. 498. it was decided, that in an action against the sheriff for not seizing, upon execution, chattels, which he had attached on the original writ, it is a good defence, that such chattels were the property of strangers, and not of the debtor. “ We are satisfied,” said Ch. J. Parsons, that under the general issue, the defendant may prove he was guilty of no neglect, and that the plaintiff sustained no injury, by his non-feasance. The principle is precisely that which l have already expressed; and that is, the plaintiff has received no damage, and therefore he can complain of no wrong.
In the case of Tyler v. Ulmer, 12 Mass. Rep. 163. it was determined, that the officer, who had attached certain chattels, and afterwards returned the execution issued in the case non est inventus, had a good defence against an action on the case, by showing, that the goods attached were not the property of the debtor. Now, if for the not levying his execution, it was a sufficient defence, that he had no legal right to levy, why is not a defective levy, by the direction of the creditor, on similar estate, equally a defence. In both instances, the execution ought not to have been levied ; and equally in both, the creditor would sustain no damage.
It often has been decided, at the circuit, and I think most justly, that one who receipts goods of an officer taken on execution, is not liable for their non-delivery, if it is shown, that they were not the debtor’s property. It is because, by the omission to deliver, the plaintiff has sustained no damage.
As the testimony offered by the defendant, to shew, that the *55execution debtor was not the owner of the land levied on, was rejected, by the court, I would advise a new trial.
The other Judges were of the same opinion, except Peters, J., who was not present, when the case was decided.New trial to be granted.