2. Whether the fact, that a deputy-sheriff is party to a suit, renders the sheriff so far interested, that the process must be served by a coroner, qu. · Ibid.

C. Return of an officer.

1. The certificate or return of a sworn officer, as to an official act, is always evidence in his favor, where he either claims or justifies under such act, as party to a suit; and it is presumed to be correct, till proved otherwise. - Bruce v. Holden, xxi. 187.

2. Two officers successively attached the same chattel, and made their returns accordingly. Held, the return of each was prima facie evidence of his attachment; but, it being shown by other proof, that the one who first attached was not in possession at the time of the second attachment, held, that the latter should prevail over the former. Ibid.

3. Where a field-driver impounds beasts for being at large in the highway, he is bound to leave with the pound-keeper a memorandum or certificate of the cause of impounding, and of his fees and expenses. And such certificate, being an official act, is prima facie evidence in his favor, in an action of trespass against him for taking the beasts. - Ibid.

4. Upon any neglect of duty, the law presumes some damage. Hence, an execution creditor may maintain an action for nominal damages against the officer for failing to return the execution, though he has suffered no actual injury. - Laflin v. Willard, xvi.

64.

5. Upon a warrant, directing a constable to warn a townmeeting fourteen days before such meeting, he made a return, dated less than that time before the meeting, that, pursuant thereto, he had warned the inhabitants to meet at the time therein named. Held, the date of the return did not prove, that the warrant had not been seasonably served. Williams v. School, &c. xxi. 75.

D. Rights, duties and liabilities of an officer. (See Sheriff.)

1. Personal property having been attached upon several writs, and sold by consent, and one of the creditors having purchased a part of it, it was agreed between the creditors and the debtor, with the knowledge of the officer, that the actions should not be entered, but he should apply the proceeds of sale to the several claims, in

the order of attachments; and accordingly the actions were not entered. The officer paid some of the claims. He then brings an action against the creditor who became a purchaser at the sale, for the price of the property bought by him, which was less than the amount of his claim. Held, the action would not lie. Ball v. Divoll, xvii. 143.

2. Where the goods of A. are in the store of B., an officer, having a writ against A., going to the store for the purpose of attaching them, and being refused admittance by B., may break open the store. Platt v. Brown, xvi. 553.

3. A note made to an officer by A., in consideration of his forbearing to make, or relinquishing, an attachment upon the property of B.; is founded upon a legal and sufficient consideration. -Foster v. Clark, xix. 329.

4. An action lies, before the return day of the execution, against an officer who refuses to pay over, on demand, money collected thereupon. Rogers v. Sumner, xvi. 387. Whether without a demand, qu. Ibid.

5. Such action lies, although the money is adversely claimed by a third person, and the officer refuses to give the creditor a bond of indemnity. But, under these circumstances, unless the officer is actuated by some sinister motive, the creditor cannot recover the statutory penalty of fivefold interest, for unreasonably retaining the money. - Ibid.

6. An officer cannot attach in his own hands money collected upon execution, by virtue of a writ against the execution creditor. And, if he do so, upon a writ given to him by the execution debtor, he is liable to the above penalty for not paying over the money. Thompson v. Brown, xvii. 462.

7. Certain oxen of the plaintiff were attached, together with other cattle of one A., upon a writ against A., and the plaintiff omitted to notify the officer of his title to the oxen. After the lien of the attachment had ceased, and the oxen and other cattle had been separated, the former were seized upon an execution in the same suit, and the plaintiff brings trespass against the officer. Held, the action might be sustained, without giving notice of his title, or a demand for the oxen. Stickney v. Davis, xvi. 19.

8. Where A. attaches goods, a part of which are afterwards attached by B., an officer may levy A.'s execution upon any portion of the goods, without reference to the rights of B. Rogers v. Sumner, xvi. 387.

9. Personal estate and an equity of redemption belonging to a debtor having been attached, he assigned the latter, after which it

was attached in another suit against him. The personal property was sold upon the writ. Judgments were recovered in both suits, and executions seasonably delivered to the officer. Held, he was bound to apply the proceeds of the personal property to the execution in the first suit, in relief of the assignee of the equity of redemption. Forbush v. Willard, xvi. 42.

10. Attachment of real estate, consisting of a homestead and of a woodlot, mortgaged to different persons. The debtor subsequently mortgaged the homestead to A.; B., another creditor, then attached the debtor's interest in the real estate; and the executions of both creditors were delivered to the officer at once. He levied the first creditor's execution on the equity of redemption in the woodlot, whereby the other execution remained unsatisfied. Held, without special instructions, the officer was not bound to levy the execution of the first attaching creditor on the right of redemption in the homestead, without regard to the claims of A., in order that the equity in the woodlot might be left to be applied in satisfaction of the other execution.- Laflin v. Willard, xvi. 64.

11. A., having two executions against B., one of which was secured by attachment, delivered them together to an officer, directing him, if B. should present by way of set-off an execution which he held against A., to set it off against the execution which was not secured; but the officer set it off against the other. Held, the officer was liable to A. for damages. Coggeshall v. Varnum, xix. 422.

12. An officer, who delivers goods attached to a bailee named by the creditor, is not responsible for the default of such bailee.Donham v. Wild, xix. 520.

13. Though an officer who takes a bail bond is liable to suit for not returning it with the writ, yet, if he deliver or offer it to the plaintiff in season for a scire facias against the bail, he is liable to nominal damages only. Glezen v. Rood, 2 Met. 490.

14. A justice of the peace issued his notification, that an imprisoned debtor intended to take the poor debtor's oath at a certain time, and an officer returned that he had served a copy on the creditor; but, in fact, the supposed copy appointed a different time. The oath was taken agreeably to the original notice, and the debtor discharged, the creditor not attending. The creditor brings a suit against the officer for a false return. Held, the officer might prove, in mitigation of damages, that the debtor had no attachable or visible property; and if this, in connexion with other evidence, showed that he could lawfully take the oath, only nominal damages should be recovered. Woods v. Varnum, xxi,

165.

15. Where an execution purchaser loses his title to the property, by reason of some neglect in the officer to comply with the requirements of law; he may maintain an action on the case against such officer. So also, against the sheriff, for such neglect in his deputy. Sexton v. Nevers, xx. 451.

16. The plaintiff, being the grantee of an equity of redemption, in order to confirm his title, caused the equity to be sold upon an execution against the grantor, and himself purchased it for the amount of the execution, taking a deed from the officer, but paying him only his fees and expenses. By reason of a neglect in the officer, the sale became invalid, but the plaintiff's title was good upon other grounds. Held, the officer was liable to an action on the case, and the measure of damages was not the sum bid, but the amount paid, with interest. Ibid.

Parent and Child.

1. The distinction, between being pregnant and being quick with child, applies chiefly, if not wholly, to criminal cases; and not to descents, devises or other gifts. — Hall v. Hancock, xv. 255.

2. In general, a child is understood as in being, when conceived, if it is for its own benefit to be so considered. - Ibid. The time of conception is presumed to be nine months before birth, there being no proof to the contrary. - Ibid.

3. Bequest to such of the testator's grandchildren, as should be living at his decease, in equal portions. Held, a grandchild, born within nine months after his death, was entitled to a share. — Ibid.

4. Whether the law will raise an implied contract on the part of a father, to pay for the services of an unmarried daughter, who remains in his family after coming of age, is supported by him, and performs the services usual under such circumstances; throwing the burden of proving a contrary understanding upon the father's administrator, against whom she brings a suit; qu. Guild v. Guild, xv. 129.

5. A father is not liable, under St. 1793, c. 59, § 3, for the support of his son, until the statutory proceedings are instituted against him. Hence, to furnish supplies to the son is no benefit to the father, and he is not liable upon a subsequent promise to pay for them. Loomis v. Newhall, xv. 159.

6. Under St. 1783, c. 24, § 8, providing that a child or grand

child, not having a legacy in the will of his parent or grandparent, shall have his proportion of the testator's estate assigned him; the presumption is, that such child was unintentionally overlooked; and the provision will apply, unless other parts of the will show the contrary. Tucker v. Boston, xviii. 162.

7. Where the grandchildren of the testatrix were very numerous, the relations complicated, the testatrix aged, and every grandchild, but one, nominally or substantially, particularly or generally, provided for; held, the above provision was applicable, though the mother was named in the will. Ibid.

8. Where a person lives apart from his wife, and suffers his minor son to remain in her care and custody, supported and employed by her, or to leave him, employ himself as he pleases, and take his wages; the father cannot maintain an action against a third person, upon a declaration alleging that the defendant enticed and carried away the son from the plaintiff's own care and custody. And where a minor, under these circumstances, ships for a voyage at the mother's request; and the father forbids the ship-owner to take the son to sea; he cannot upon such declaration maintain a suit against the ship-owner. Wodell v. Coggeshall, 2 Met. 89.

9. A minor son of the plaintiff, in the employ of his father, shipped himself in a whaling-vessel as a seaman, without the plaintiff's consent, and during the voyage deserted without cause. By a usage of such voyages, the ship-owner alone has the benefit of forfeited shares. Held, the plaintiff's remedy was against the owner, and that he could not sue the master, as upon an implied contract, for the services of the son. Bishop v. Shepherd, xxiii.

492.