The defendants, in the court below, objected to the admission of the execution offered in evidence, because it was not stated in the endorsement of the officer, that it was recorded in the records of the town ; and claimed, that the certificate of the town-clerk did not dispense with the necessity of such statement. Upon this objection alone, the evidence was excluded.
The statute provides, that “ it shall be the duty of the officer to cause such execution, with his proper endorsement thereon, of such appraisal and his proceedings, to be recorded at length, in the records of the town, where the lands or real estate lie.” Stat. 58. tit. 2. s. 77. Another statute directs, that “ there shall be kept in every town proper books, in which shall be registered and recorded at length, by the town-clerk, all deeds &c., and also all executions levied on lands or tenements, returned to him, by the officers levying the same, to be recorded.” Stat. 459. 460. tit. 103. s. 3.
The proceedings referred to evidently are those acts, which precede the return to the town-clerk; such as the demand of payment, the levy, the appointment of appraisers, and the manner of applying the real estate in satisfaction of the execution. Having performed these, and made his endorsement of the appraisal and his proceedings, he returns the execution, with the endorsement, to the clerk, who is required by law to record them. There is no law requiring the officer to make more than one endorsement upon the execution ; and that endorsement must be completed, before the execution is delivered to the clerk to be recorded. There would be a manifest impropriety in the officer’s stating in his endorsement, which is made under his official oath, that the execution had been recorded, before the record has actually been made, or the execution delivered to the clerk for that purpose. The legislature could not have contemplated the requirement of such an act.
But further, the officer has nothing to do with the recording. His business is to deliver the execution to the clerk, who is required by the statute, to'make the record. There would, therefore, be a further impropriety in requiring him to certify, under his official oath, that the execution and en*580dorsement had been recorded at length, when the law required another public officer to do the act. He could indeed certify, that he had delivered the execution to the clerk; but he could not consistently certify, that it had been recorded at full length, without a personal examination of the record, which the law does not make his duty. As the record is to be made by the clerk, his certificate, as in other cases, is the proper evidence of the fact.
The rejection of the execution as evidence in the cause, for the reason assigned, was, in our opinion, erroneous ; and we, consequently, advise a new trial.
In this opinion the other Judges concurred.
New trial to be granted.