#### Nathaniel H. Whitaker *versus*Charles P. Sumner.

•A attached an equity of redemption of land of B, and C subsequently attached the same equity. The equity was taken on an execution in A’s favor, and adver tised for sale, but the advertisement published in the newspaper did not specify any place of sale. The sale was made on the laud, C acting as auctioneer. At the sale C set up the estate as subject to no incumbrance but the mortgage ; and nothing was said of his having a subsequent attachment. The equity brought a fair price. The officer’s return stated, that he had advertised the *place*of sale in the newspaper. C, having afterward obtained judgment and execution in his suit against B, brought an action against the sheriff for the false return of his deputy, *jHeld j*—

That the return was false: —

That the action was maintainable t —

That the damages recoverable were, the amount of C’s judgment against B, with interest from the service of the writ, the amount for which the equity was sold being more than sufficient to have satisfied C’s judgment: —-

That C, as he was acting as auctioneer, was not bound to disclose his attachment at the sale ; and was not estopped by his representation then made from maintaining this action : —

That the return of the officer was so far conclusive, as that the equity of redemption passed by the sale, and could not therefore have been taken again on the plaintiff’s execution.

Case against the defendant, as sheriff of Suffolk, for a false return made by Nathaniel Freeman, one of his deputies, on an execution in favor of Ralph Huntington against Benjamin Huntington, and a like false return on another execution of A. Dolliver against the same Benjamin Huntington, whereby the plaintiff was injured, he having an attachment, judgment, and execution against the same Benjamin Huntington, which the declaration alleges would have been satisfied out of th.e property sold on the execution of Ralph Huntington and Dolliver if the return of the officer upon them had truly set forth his doings.

The case was tried before *Parker*C. J., when the following facts appeared in evidence. The executions of Dolliver and Ralph Huntington were levied on the equities of redemption of two parcels of mortgaged land in Boston belonging to Benjamin Huntington, which they had previously attached, one of which equities (of an estate in Pleasant street) was sold for 2156 dolíais, and the other (of an estate in Columbia street) *562for 50 dollars, both of which sums were applied to satisfy those two executions. These sums would have been more than sufficient to satisfy the judgment of the plaintiff, who had attached the same equities subsequently to the attachments of Dolliver and Ralph Huntington. The return of the officer on the executions states that he had duly advertised, in certain newspapers mentioned therein, *the time and place*of sale. It appeared from those papers, that no *place*of sale was mentioned in the advertisements. In all other respects the proceedings were regular. The plaintiff, supposing the sales of the equities to be void for this informality, caused the same to be taken by the sheriff on his execution, and advertised for sale, but the proceedings on the other executions being stated, no one offered to purchase.

*March 27th,*1828.

At the sale of the estate in Pleasant street, Henry Andrews, a broker, acting for one Gilbert, was the highest bidder. After the sale and before the deed was delivered, Gilbert declined taking the estate, on account of the suggestion that there was irregularity in the proceedings ; but five months after the sale, by consent of Andrews, a deed was made and delivered to him, and a deed was made by him to Mr. Morey, who paid the money therefor to the sheriff.

It was proved that the sales were as well attended as usual on such occasions, and that the prices were fair ; that the sales were respectively made on the mortgaged premises^ and that auction flags were flying on them at the times of the sales. It appeared that it was usual to sell equities of redemption taken on execution, on the mortgaged premises. The plaintiff was himself the auctioneer at the sales of the equities ; and he did not at the time mention that he had any attachment upon them, or that they were subject to any other incumbrance than the respective mortgages. Nothing was said at the sales, of any defect in the advertisements.

The judge directed a nonsuit, subject to the opinion of the whole Court.

*Hubbard*and Cooke, for the plaintiff.

The statute of 1798, c. 77, § 4, made it essential for the officer to advertise the *place*of sale. He was bound to follow the statute directions precisely, and to set them out in his return. *Rex*v. Cooke, 1 *563Cowp 30 ; *Williams*v. *Amory,*14 Mass. R. 29, 30 ; *Wellman*v. Lawrence, 15 Mass. R. 326 ; *Taylor*v. *Fenwick,*3 Bos. & Pul. 553, note. The return is false in stating that he advertised the *place*of sale, when the advertisement makes no mention of the place of sale. *Frothingham*v. *Marsh,*1 Mass. R. 247 ; *Davis*v. *Maynard,*9 Mass. R. 242 ; *Wellington*v. *Gale,*13 Mass. R. 488, 489. The proper remedy for the plaintiff who was injured by this false return, is by this action, since the return is conclusive as to all formal proceedings, ex cept in an action against the officer for the false return. *Slayton*v. *Chester,*4 Mass. R. 478 ; *Bott*v. *Burnell,*9 Mass. R. 96 ; S. C. 11 Mass. R. 163 ; *Bean*v. *Parker,*17 Mass. R. 591 ; *Livermore*v. *Bagley,*3 Mass. R. 513 ; *Wright*v *Hooker, 4*Cowen, 415.

*Rand*and *Morey,*for the defendant,

contended that the advertisement by Freeman was sufficient, as no particular form of advertising is directed by the statute, and it must have been understood that the sale would be on the premises. It has been the prevalent opinion, even among the profession, that it is necessary for the sale to be on the premises. *Pomeroy*v. *Winship,*10 Mass. R. 521. An advertisement of a sale in which the hour of the day was not mentioned, was yet held sufficient. *Colman*v. *Anderson,*12 Mass. R. 115.

The plaintiff in this action having himself acted as auctioneer, and having at the sales represented the estates to be subject to no incumbrances except the mortgages, is estopped from setting up the lien of his own attachment, which he concealed, and from contesting the validity of proceedings which he sanctioned. 2 Stark. Ev. 28 to 54 ; *Like*v. *Howe,*6 Esp. R. 20 ; *Clarke*v. *Clarke,*ibid. 61 ; *Maltby*v. *Christie,*1 Esp. R. 340 ; *Lundie*v. *Robertson,*7 East, 236 ; *Taylor*v. *Jones,*2 Campb. 105 : *Gibbon*v. *Coggon,*2 Campb. 188 ; 1 Powell on Mortg. (5th ed.) *ch.*13, *p.*434 to 446 ; *Burrowes*v. *Lock,*10 Ves. 473.

The return in this case was not conclusive against the plaintiff. Big. Dig. (2d ed.) 552, *Return, G.*If then the sale was void, the proper course for the plaintiff was to disregard it and to go on and levy his execution.

The plaintiff has received no damage, for if Freeman had *564done his duty properly, nothing would have been left for the plaintiff’s execution to be levied on. *Rich*v. Bell, 16 Mass. R. 294.

*March 16th,*1829.

*Hubbard,*in reply,

to show that Whitaker’s not mentioning t his attachment at the time when he sold the equities ought not to affect his rights in this action, cited *Laidlow*v. *Organ,*2 Wheat. 178.

Putnam J.

delivered the opinion of the Court. We shall consider in the first place, whether the officer made a false return. He stated that he had duly advertised the time and place of the sale ; and upon reference to the advertisement, it appears that the place of the sale was not specially designated.

The *St.*1798, c. 77, § 4, [Revised Stat. c. 73, § 39,] touching the manner of selling rights in equity of redeeming real estate mortgaged, provides that the officer “ shall give notice in writing of the *time and place of sale,*to the debtor,’’ and public notice “ of the *said time and place*of sale, by posting up notifications thereof,’’ and he “ shall cause an advertisement of the *time and place of sale*to be published in some public newspaper.’’ And that if the estate *“*shall not be disposed of .at the *time and place*appointed,” the officer may adjourn the vendue. The place of sale is mentioned in connexion with the time of sale, four times in this section ; and it is most manifest, that the legislature intended that the officer should strictly comply with the requisitions touching the one as well as the other. *“*Every thing essential to a title under the statute ought to appear of record ; ” *Wellington*v. *Gale,*13 Mass. R. 488*;*and is not to be collected by inference, from extraneous facts.

It has been contended, however, that this return may be supported on the authority of *Colman v. Anderson,*10 Mass. R. 115 ; which was a sale for taxes thirty years before the trial, and an objection to its legality was made, because the officer did not give notice of the hour of the day on which the sale was made, but only of the day, which notice was held to be good. But it is to be observed, that if a person desirous of attending the sale had attended at the place of sale the whole day, he might have accomplished his object, and that too without making any other inquiry for information than was given in *565the advertisement. But a person desirous of attending the sale now under consideration, could not ascertain where the sale was to be made, without inquiring beyond the advertisement. We are all clearly of opinion that the officer made a false return, in returning that he had given notice of the place wheie the sale would be made.

We are next to consider what effects followed from this return. It is conclusive in all questions that can arise between the creditor and debtor, and all persons claiming under either of them. See the cases collected in Big. Dig. *Officer, G, pi.*6.1 So that if the plaintiff had extended his execution upon the same right in equity of the judgment debtor, he could not have controverted the facts stated in the return. He was not, therefore (as has been argued), required to go on and levy and try the title ; which would have resulted in certain loss; but is entitled to recover the damage he has sustained by reason of the misconduct of the officer. If the officer had returned the fact as it existed, referring to the advertisement for particular information, so as to make it a part of his return, the plaintiff might have obtained a satisfaction of his execution by a levy subsequent to that which the officer had made for Ralph Huntington. As the circumstances existed, the remedy which the plaintiff has pursued seems to us to be the proper one.

But it has been contended, that the plaintiff is estopped bj his own representations at the auction sale, to claim any advantage from his attachment. The case cited from 1 Esp. R. 340, *Maltby, Assignee of Durouveray, a Bankrupt,*v. *Christie,*is as strong as any to support this point, but not sufficient. The plaintiff was required to prove the bankruptcy of Durouveray, and offered the defendant’s catalogue of the sale of his property stating him to be a bankrupt. The defendant was acting in his own name and behalf, and admitted under his own *566hand the fact in controversy. The dictum of Lord *Eldon,*recognised by Sir *William*Grant, in the note to 1 Pow. on Mortg. 445, is true, as a general remark : That if a representation be made to another person going to deal in any matter of interest upon the faith of that representation, the former shall make it good if he knows it to be false. If the plaintiff had undertaken for himself personally to stipulate that the officer had proceeded legally in regard to the levying of the exe cution, and it had turned out otherwise, he would without doubt be concluded. But in the case at bar the plaintiff acted in his public capacity of auctioneer, and not on his own account. The plaintiff had a right to keep his own secret, touching his attachment; so far at least is certain, that he was not bound to surrender it merely because he was called upon to perform a duty in his official character. What he did and said at this sheriff’s auction, was to be taken by all concerned, as if the officer for whom he was acting had done and said the same things. No deception was practised, no personal representation was made. The sale was conducted in every respect as if it had been in fact made by the officer, without the interven tion of a public auctioneer. Neither the cases cited, nor the reason of the thing, has convinced us that he was called upon to disclose his own private concerns, any more than he would have been if he had attended the sale in case it had been conducted by the officer himself, or by any other public auctioneer.

Besides, the question is not as to the validity of the first sale, which is established by the return, as has been already shown. If, therefore, the sheriff and the plaintiff would be both estopped to disturb the sale, it does not follow that the plaintiff is estopped from showing the defendant’s false return, which is the foundation of this action, and which was the act of the defendant, the plaintiff having had no participation in it. If, therefore, the vendee at the first sale could have estopped the plaintiff, had the sheriff made a true return, it would be nc bar in this action, and could only affect the damages.

The result is, that the judgment creditor, for whom the officer was acting, would have lost his lien upon the property, if the officer had returned the truth. By means of the false re*567turn the property was secured to his principal, but the effect of that has been to deprive the plaintiff of his legal right to levy upon it. It being admitted to have been sufficient to satisfy the plaintiff’s execution, that must be considered as the measure of damages, with interest from the service of the writ. 1

The opinion of the Court having been formed upon the grounds before stated, it is not necessary to consider any other of the points which were made in the argument.

The judgment of the Court is, that the nonsuit shall be taken off, and that a new trial shall be granted.

1

 See *Bott*v. Burnell, 11 Mass. R. (Rand’s ed.) 165, note a; *Estabrook*v. Hapgood, 10 Mass. R. (Rand’s ed.) 315, note *a) Naylor*v. *Dennie,*8 Pick. 204; *Sias*v. Badger, 6 N. Hampsh. R, 393.

The return of an officer on a writ, as to the service of it, is conclusive on the parties in the suit, and cannot be contradicted except in an action against the officer for a false return. *Stinson*v. *Snow,*1 Fairfield, 263. See also *American Bank*v Doolittle, 14 Pick. 126,127.

1

 See *Whitaker*v. *Sumner,*9 Pick. 308.