The statute, entitled u an Set subjecting “ lands, and tenements, to the payment of debts, and direct- “ ing the mode of levying executions on teal and personal es- “ date,” enacts, u that the creditor shall deliver his execu- “ tion to the sheriff, &c. who shall cause three appraisers a to be chosen, one by the creditor or creditors, another by “ the debtor or debtors, if he or they so please, and the third “ by the sheriff. And in all cases where the debtor shall, “ on due notice, neglect or refuse to choose an appraiser, “ the officer shall appoint one for such debtor or debtors.” It has been urged in this case, that nothing passed by the extent, because, under the circumstances, the sheriff had no authority to appoint an appraiser for the debtor ; that the statute gives to the sheriff such authority only, in case the debtor, upon due notice, neglect or refuse to appoint ; and that nothing can pass by an extent, unless the direction of the statute be strictly pursued. And the question ⅛, whether, when the debtor cannot be found, the sheriff, in making an extent, is authorized to appoint an appraiser for the debtor ? If this question were now for the first time to be decided, the argument urged by the tenant’s counsel would deserve the most deliberate consideration. But this is not the case. This question arose in the case of Atherton vs. Stratton, sty-era 1 years since, and it was decided solemnly, that in sucL a case the sheriff might appoint an appraiser for the debtor. N. H. Justice 298, We feel ourselves bound by that decision, and are of opinion, that there be
Judgment on the verdicU