*223The opinion of the court was deiivered by

This is an action on the case for the default of the defendant’s deputy sheriff in the levy and set-off of real ■estate upon an execution in favor of the plaintiff against one Benj. F. Barker.

The default complained of arose from the deputy’s neglect to cause the execution with his return of doings thereon to be recorded in the town and county clerk’s offices within its life, whereby the land levied upon was lost to the execution creditor.

This neglect of official duty is conceded by the defendant; and the only question reserved for our determination is as to the measure of the plaintiff’s damages. The plaintiff insist that the value fixed by the appraisers is the true measure of damages, while the defendant claims that the actual value of the land is the proper measure.

The return of the officer is conclusive upon him respecting all acts therein certified to have been done by him. The appraisal of the land is not made by him, but by a board of disinterested men selected as the law requires. This board reports its action to the officer and he certifies it in his return as their acts. Such appraisal is conclusive, unless impeachable for legal cause, upon the parties to the execution; but if fraudulently or corruptly made, or honestly made, it is a proceeding without the control and beyond the dictation of the officer.

If the officer had wholly neglected to make the levy the creditor would recover what he has lost by such omission, namely : the actual value of the land which should have been set off. The default in this case worked precisely this result, the officer neglected to make a legal levy, and so in legal sense made no levy, and the land was wholly lost to the creditor. The proper measure of damages therefore is the fair market value of the land, at the time the default occurred.

The pro forma judgment of the County Court is reversed, and judgment on the report for the plaintiff for $133.66 (the value of the land less the encumbrance) and interest from the date of the officer’s return.