the said E afterwards, to wit, on &c., at &c., received of the said C, the further sum of $-, in part of said alias execution, and well might and ought to have served the said execution on the said C, for the remainder, according to the precept of said writ; yet the said E then and there neglected so to do; nor did he return the last mentioned execution, according to the precept thereof; nor has he ever paid said sums, by him received on said executions, to said plaintiff, though requested, at &c., on &c., as by law and the duty of his office, he might and ought to have done; but hath neglected and refused, and still neglects and refuses to pay them; and so the said plaintiff hath wholly lost the benefit of said judgment and executions, for recovering the sums aforesaid, to the damage, &c. T. BRADBURY.

Against sheriff for neglect of deputy to take a debtor in execution.

For that whereas the plaintiff, by the consideration of our justices &c., recovered judgment against one C, of &c., for the sum of $-, damages, and $-, costs of the same suit, as by the record thereof, in the same court remaining, appears; and afterwards, to wit, on &c., the plaintiff sued out our writ of execution thereupon, in due form of law, directed to the sheriff of our said county of &c., or his deputy, commanding them, among other things, of the goods, chattels or lands of the said C, within their precinct, to cause to be paid and satisfied unto the plaintiff, at the value thereof in money, the aforesaid sums, with &c. for our said writ of execution; and for want of goods, chattels or lands of the said C, to be by him shown unto the said sheriff or his deputy, or found within their precinct, to the acceptance of the plaintiff, to satisfy the sums aforesaid, to take the body of the said C, and him commit unto our jail, in &c., and detain in custody until he should pay the full sums abovementioned, with the said sheriff's or his deputy's fees, and that he should be discharged by the plaintiff, the creditor, or otherwise by order of law; and to make return of our said writ of execution, with their doings thereon, into the clerk's office of our said court of &c., to be holden at &c., on &c.; and afterwards, to wit, on the same day, at &c., the plaintiff delivered our said writ of execution to one D, of &c., then and ever since one of said sheriff's deputies, for our said county of &c., and for whose doings in his said office, the said sheriff is answerable by law, to be duly executed; and requested the said D, to serve, execute and

return the same, according to the precept thereof. And the said D, then and there received the same of the said plaintiff, to be served, executed and returned according to the precept thereof. And afterwards, before the return of said writ, to wit, on &c., at &c., the said C was in the presence of the said D; yet the said D, in no wise regarding the duty of his said office, but contriving and fraudulently intending to deprive the plaintiff of his proper remedy to obtain satisfaction and payment of the aforesaid sums, amounting to $, did then and there wilfully refuse and neglect to take the body of the said C, according to the command of our said writ of execution, though the said D might then and there easily have taken or arrested the said C; nor hath the said D, at any time since, taken or arrested the said C, upon our writ of execution, or in any wise satisfied the plaintiff for the sums aforesaid. And the said C hath, ever since the day of the return of the said writ, absconded and escaped into places altogether unknown; so that the plaintiff hath, by means of the said D's wilful neglect of his duty aforesaid, totally lost all benefit of the payment and execution aforesaid, &c. F. DANA.

Against sheriff for neglect of duty of deputy in omitting to arrest plaintiff's debtor, and to attach his goods on mesne process.

For that whereas at &c., on &c., one R W, by his note under his hand, for value received, promised the plaintiff to pay him or his order &c., on demand, with lawful interest till paid; and afterwards, on &c., the contents of the said note being unpaid, though the said R W was before duly requested, the plaintiff, for the recovery of his due damages for the breach of that promise, purchased out of the office of the clerk of our court of C. P. for said county, our writ of attachment, in due form as by law is required, directed to the sheriff of &c., commanding them among other things, to attach the goods and estate of the said R, to the value &c., (in common form) to answer to the said E, upon his declaration therein at large set forth, and to have the same writ, with their doings thereon, at the same court as by the record of the same writ, in the same court remaining, more fully appears. And afterwards, to wit, on &c., at &c., the said E delivered the same writ to one I K, then and ever since a deputy-sheriff for the same county, duly authorized and qualified under the said D, who then was, and ever since has been, sheriff of our said county, and then and there was,

and still is, by law, answerable for the neglect of the said I, his deputy aforesaid, to be by him, the said I, duly executed, served, and returned, according to the precept thereof; and afterwards, on the same day, at &c., the said I, being possessed of the same writ, was present and in company with the said R, and could have attached his body; yet the said I, regardless and negligent of his duty in this particular, did then and there utterly refuse and neglect to attach the body of the said R, as he might have done; neither did the said I, at any time, by force of the same writ, attach the goods of the same R, to the value of $-, as he was therein commanded; but thereafterwards on the same day, attached a chair of no value, as the estate of the said R, and at the same court of C. P. returned the same writ, and thereon, among other things, falsely returned, that he could not take the body of the defendant, (meaning the said R,) and that he had attached a chair as his estate, being all he could find; by reason of which neglect and misdoing of the said I, the said C hath altogether lost the aforesaid sum of $-, together with the lawful interest therefor, and such other due damages as he might have recovered for the payment thereof, and his lawful costs of that suit, &c.

JONA. SEWALL.

Against sheriff for not returning a wril.

For that the plaintiff, on &c., purchased our writ of attachment out of the office of the clerk of our court of C P for our county of S, in form by law prescribed, for the recovery of the sum of $-, with interest, due to the plaintiff from one J B, then an inhabitant of &c., by his, the said B's note of hand, dated &c., as also for the recovery of a further sum of $-, due to the plaintiff from the said B, according to the said B's negotiable note, indorsed to the plaintiff; and the plaintiff declared accordingly, in his said writ of attachment against the said B, in a plea of the Case, setting forth the sums due from the said B, on the notes aforesaid, and the plaintiff's damage by the said B's neglecting to pay the said sums to the plaintiff; and the said writ was directed to the sheriff of our said county of &c., or his deputy, commanding them, &c. [in common form.] And afterwards, viz. on &c., at &c., the plaintiff delivered the said writ to the said T, then and to this day sheriff of our said county of &c., to be executed and returned into the then next court of C. P., which was held at &c., in and for

the said county of S, on &c. and the said T, then and there promised to serve and return the same writ accordingly; yet the said T, neglecting in the premises, never made any return of the said writ, or of his doings therein, to the said court, when and where it was returnable as aforesaid; nor did any of his deputies make any return thereof, but secreted the same; whereby the plaintiff hath lost the benefit thereof, and of the said notes, which remain yet unpaid. Swift v. Moulton.

NOTE. In an action against the sheriff for a false return on mesne process, the declaration should state, that the plaintiff had good cause of action against the defendant in the original action, by stating "that he was indebted to him for money lent, goods sold, &c. ;" and the plaintiff should prove such averment. Esp. N. P. C. 477, notes. And this rule is required, it seems, in all cases of mesne process; and such evidence as would charge the defendant, in the original action, will be sufficient proof of the debt against the sheriff. Esp. N. P. C. 695; Peake's N. P. C. 65. It is best also, if the truth of the case will admit, to state, that the defendant is now insolvent.

Against the same, for deputy's not returning an execution.

For that whereas the plaintiff, by the consideration of our justices of &c., held at &c., within and for the county of &c., on &c., recovered judgment against one A B, of &c., for the sum of $-, damages, and $-, costs of suit, as by the record thereof, in the same court remaining, appears ; and afterwards, on &c., the plaintiff sued out our writ of execution, in form prescribed by law, directed to the sheriff of said county of &c., or his deputy, returnable into the same court, on &c.; and on &c., at &c., the plaintiff delivered our said writ of execution to one C, of &c. then and ever since one of the said T's deputy-sheriffs in and for our said county of &c., and for whose doings in his said office, the said T is by law answerable, to be duly executed and returned accordingly. Yet the said C, in no wise regarding the duty of his office aforesaid, utterly neglected and refused to return our said writ, according to our command therein, nor hath the said T, or any of his deputies ever done it. Whereby the plaintiff hath lost the benefit of the said judgment and execution. R. DANA.

For negligently searching and packing beef. For that whereas the said plaintiff, at &c., on &c., was possessed of one hundred and eight barrels of beef, of the value of &c., which the said plaintiff had then before agreed

to sell to one A A, and which he had contracted and engaged to deliver to the said A A, in shipping order, and whereas the said T was then and there a searcher and packer of barrel beef, duly appointed and sworn, the said plaintiff then and there employed the said T, so being such searcher and packer as aforesaid, to search and pack the said one hundred and eight barrels of beef, and to see and take care, that there should be good salt in each cask, sufficient to preserve the said beef from damage, and to keep the same in shipping order, and then and there delivered the said beef to the said T, for the purposes aforesaid, and likewise then and there, provided and delivered to the said T, good and sufficient salt to preserve the said beef from damage as aforesaid, and to be used for that purpose; and the said T, in consideration of the premises, then and there promised the plaintiff, that he would carefully and skilfully search and pack the said one hundred and eight barrels of beef, and would see and take care, that there should be good salt in each cask thereof, sufficient to preserve the said beef from damage, and keep the same in shipping order; yet the said T, not regarding his promise aforesaid, nor his duty in his said office, employ, and duty of a searcher and packer of barreled beef, afterwards, to wit, at said &c., on the same &c. day of &c., did not see and take care that there should be good salt in each cask of said beef, sufficient to preserve the said beef from damage, and to keep the same in shipping order, but did then and there so carelessly and unskilfully search and pack the said one hundred and eight barrels of beef, that by and through the mere carelessness, neglect, and default of the said D, in the premises, the said beef was not kept in shipping order, whereby not only the said beef was greatly damaged, but the said A A, to whom the said plaintiff afterwards sold and delivered the said beef, according to his promise and agreement abovementioned, caused the said one hundred and eight barrels of beef to be opened and searched and packed anew, and a large quantity of salt to be added and put into each of the said barrels, to put and keep the said beef in shipping order as aforesaid; and the said plaintiff has been compelled to pay, and has paid, a large sum of money, to wit, the sum of $for the salt so added to the said barrels as aforesaid, and for the cooper's bill, and for other charges and expenses in opening, searching, and packing the said beef anew, as abovementioned, to wit, at said, &c.