#### Merchant Tobey *versus*Horatio Leonard.

The sheriff is not bound, by virtue of his office, to cause an execution, levied by him on land of the judgment debtor, to be recorded in the registry of deeds. And if his deputy, having so levied an execution, receive the fees for recording of the judgment creditor, the sheriff is not answerable for the neglect of his deputy to procure the recording of it.

This was an action of the case against the defendant, sheriff of the county of *Bristol,*for the neglect of *William Gordon,*one of his deputies; and it was submitted to the determination of the Court upon certain facts agreed by the parties.

The plaintiff, having recovered a judgment against one Lucas. *187sued out execution thereon, and within thirty days delivered the same to the said *Gordon,*with directions to levy it upon certain land of *Lucas,*which had been attached on the original writ in that action. *Gordon*accordingly levied the execution, pursuant to the said directions; and received from the plaintiff the costs of the levy, including the fee for recording the same in the registry of deeds. He returned the execution, as fully satisfied, into the clerk’s office, within six months, and agreeably to its precept; but he did not return it into the clerk’s office, nor deliver it to the plaintiff, nor cause it to be recorded in the registry of deeds, within three months from the levy. If, upon the facts agreed, it should be the opinion of the Court that the defendant was liable for the default of said *Gordon,*in neglecting to return said execution into the clerk’s office, or to deliver the same to the plaintiff, or to procure it to be recorded, within three months next after the levy,—in either case the defendant agreed that judgment should be rendered against him by default, for such sum as he was by law * liable to pay; otherwise, the plaintiff was to become nonsuit, and the defendant to recover his costs.

*M. Morton,*for the plaintiff.

By the provincial acts of 8 *Will.*3, c. 37, and 2 and 6 *Geo.*1, c. 121 and 132, executions levied on real estate were to be returned to the clerk’s office and there recorded, by which the creditor’s title was completed. (1) By the act of 8 *Geo.*2, c. 191, it was provided that they should be entered in the office of the register of deeds for the county, “ *at the charge of the creditor ;*” plainly implying that this was not to be done by the creditor himself, but by the officer to whom the creditor was to be responsible for the amount of the fees. (2) The statute of the commonwealtl directing the issuing, extending, and serving, of executions, (3) is employed in prescribing he duty of officers on this subject; and although it does not expressly enjoin upon them to cause the executions to be recorded, it cannot be presumed that the legislature meant to alter the law on the subject, for which no motive can be imagined. The practice, both under the last statute and under the provincial acts, is understood uniformly to hax'e been for the officer to procure the recording.

Even if he returns it to the clerk’s office within the three months, the creditor cannot take it out to record it, the clerk being answerable for its safe keeping. The officer cannot, in all cases, be held to delixrer it to the creditor; for if it has been partially satisfied with the proceeds of personal property, the title of the purchasers may be avoided, and the officer would be liable to them.

*188*W. Baylies,*for the defendant,

insisted that it was no part of the official duty of a deputy sheriff to cause the execution to be recorded. If he undertakes to the creditor to do it, this is his personal contract, for which the sheriff is not responsible. When the officer has delivered seisin to the creditor, he has done all his duty. The creditor is to see to the rest; and so, it is believed, the practice has always been. The deputy, in this case, returned the execution within the time he was commanded to return it. If it * be necessary to record it before the return day, the creditor should obtain it, and procure it to be registered. The plaintiff, in this case, made no application for it, either to the officer or at the clerk’s office ; so he has lost nothing by its not being returned at an earlier day.

(1)

 Vide *Ancient Charters, &c.*292, 413, 423.

(2)

*Ibid.*502.

(3)

*Stat.*1783, c. 57

Parker, C. J.

We are all satisfied that the undertaking, by the deputy sheriff, to procure the registry of the execution and levy, was a personal contract, for the breach of which he may be liable in damages; but it was not a violation of official duty, for which the sheriff is answerable. It was understood to have been so decided in the case of *Waterhouse*vs. *Waite;*(4) although the point does not appear, in the report of that case, to be stated as settled.

In the present case, however, it is urged that the officer making the levy is obliged, by law, either to deliver the execution, with the return, to the register, in order that it may be recorded within the time required by law, or to make return of the execution, into the clerk’s office, within such reasonable time as will give the creditor himself opportunity to see to the recording of it.

In the case before us, the execution was returned before the return day, according to the precept, but not until three months had expired after the levy ; and this neglect, it is contended, was an official nonfeasance, for which the defendant is liable. And on this point we have entertained considerable doubt; but, upon the whole, we are satisfied that, as there was no request by the creditor to make an earlier return than the precept directed, as far as the sheriff is concerned, this negligence is not a breach of official duty. The creditor may, and sometimes does, decline having his levy recorded, not intending to take the land in satisfaction ; and this he is at liberty to do. He may also receive satisfaction in money, or otherwise, from the debtor, before the levy is recorded ; or other reasons may exist, to induce him to waive the title which he has acquired under the levy; all which may be unknown to the officer making the levy. So that, in order to fix the sheriff for * the negligence of his deputy, it should ap*189pear that the creditor had requested the deputy to return the execution into the clerk’s office, or to deliver it to him, which the officer may in such case lawfully do. *(a)*

*Plaintiff nonsuit.*

(4)

11 *Mass. Rep.*207.

(a)

*(¿rucre,*if, after the levy had been made upon real estate, and the same had been set off to the creditor in satisfaction of his debt, according to law, it was not the duty of the officer, without any particular request, to make return of his doings, with the execution, in such reasonable time beibre the time limited by law for the recording thereof in the registry of deeds, that the creditor might be able, if he should think it to be expedient, to procure the same to be recorded. So it seems to have been held. — *M' Gregor & Al.*vs. *Brown,*5 *Pick.*175; and see *Waterhouse*vs. *Waite,*11 *Mass Rep.*907