#### * The Inhabitants of Boston *versus*Thomas Tileston.

Inhabitants of the town of *Boston,*although in other respects discreet men and freeholders, are not competent to be appraisers of land, upon an execution in favor of the town.

This was a writ of entry, in which the demandants count upon their own seisin within thirty years, and upon a disseisin done to them by the tenant within that time.

The demandants claim the land demanded, which lies in *Boston,*in the county of *Suffolk,*under the extent of two executions duly issued upon two judgments recovered by them against one *John Coates,*and extended upon the demanded premises, as his property. The appraisers on the said extent, one of whom was chosen by the creditors, another by the debtor, and the third by the officer who held the execution, were all inhabitants of *Boston.*

In a case stated by the parties for the opinion of the Court, it was agreed that the said appraisers were discreet men, and freeholders in the county of *Suffolk;*and that they were disinterested, unless the Court should be of opinion that their being inhabitants of the town of *Boston*at the time rendered them otherwise. It was further stated that the county of *Suffolk*consisted, at that time, of the towns of *Boston*and *Chelsea.*

If the Court should be of opinion that the said appraisers were disinterested freeholders of the county, within the meaning of the law, it was agreed that judgment should be rendered against the tenant by default; otherwise the demandants were to become nonsuit.

*Thatcher,*for the demandants,

argued that appraisers are to be considered as witnesses, sworn, in the course of the suit, to testify what is the value of the land on which the creditor is about to extend his execution. The statute of 1793, c. 32, has provided that an inhabitant of a town, &c., shall be admitted as a competent witness, in all suits at law wherein such town, &c., is a party, provided he has no other interest than as such inhabitant. If, then, appraisers are in effect but witnesses, and execution is a part of a suit at law, then no legal objection lies to the appraisers in this case. Execution is said to be the end and fruit of a suit, and consequently is a part of it. (1)

* The interest was too small to have any conceivable [ * 469 ] influence on the minds of the appraisers. An equal interest has been holden by this Court not to disqualify the inhabit *422ants of *Boston*from sitting as jurors, nor even as a judge. (2) There are no freeholders in the county of *Suffolk*qualified for such ser vices, if the inhabitants of *Boston*are not, except the inhabitants of *Chelsea,*of whom the number is very small, and those very inade quote judges of the value of real property in *Boston.*

*Dutton*for the tenant.

(1)

 5 *Co.*87, *Blumfield’s*case.

(2)

5 *Mass. Rep.*90, *Commonwealth vs.*Ryan.

*Per Curiam.*

As it is to be presumed, in this case, that the

officer who served the execution returned that the appraisers were disinterested freeholders, perhaps, on a trial between these parties, that fact would not have been traversable. But here the parties have agreed that the appraisers were inhabitants of the town of *Boston.*As such, they were parties to the suit in which the execution issued; and, as such, they were certainly not disinterested. The statute referred to by the counsel for the demandants has removed the objection of incompetency as witnesses from corporators, which shows that they were not competent at common law. But it would be going far beyond the plain and apparent intent of the legislature to extend that provision to the case of appraisers on the extent of executions. Upon a suggestion of the inconvenience of the law, as it applies to the peculiar circumstances of the town of *Boston,*the legislature would doubtless provide a remedy; but, until such provision is made, the rules of the common law must govern, *(a)*

*Demandants nonsuit.*

(a)

*Pearce*vs. Atwood, 13 *Mass. Rep.*324.