The questions in the present case concern the admission and effect of the evidence offered by the plaintiff, that, prior to the actual arrest of the plaintiff for the nonpayment of his tax, he tendered to the defendant sufficient personal property that might have been levied upon to satisfy the same. The objection to its admission is that it contravenes the return of a sworn officer. The officer does not in the present instance directly aver that there were not sufficient goods of the plaintiff that might have been found to levy upon, but merely says, “ not finding sufficient goods upon which it may be levied,” he arrested the body. There is no allegation that he made search for the goods, or that the same might not have been found with proper diligence. Without deciding the more general question of directly contradicting a return of a collector of taxes, and whether, in a suit brought against such collector for an illegal arrest, his return is to be considered prima facie evidence merely, and presumed to be correct until the contrary be shown, it might perhaps be sufficient in the present case to say that no such direct averment is made here.

*96But the court are of opinion that, in case of an action instituted against a collector of taxes for an illegal arrest, the certificate of the collector is not conclusive evidence in his favor. In cases of certificates of field-drivers, they have been treated as prima facie evidence of their doings rather than conclusive. In the somewhat loose language formerly used, they were said tó change the burden of proof, by which language we understand, when used in reference to this class of cases, not a change of the technical burden of proof upon the issue, but that they are to avail until controlled by a greater weight of evidence overpowering them. In Pickard v. Howe, 12 Met. 207, it was considered as prima facie evidence, and also in the case of Bruce v. Holden, 21 Pick. 187. In the case of Barnard v. Graves, 13 Met. 94, it was said that the certificate of a collector of taxes, of his doings on a levy of his warrant, is to be deemed prima facie evidence as to all matters upon which they are by law to make returns. We have not felt that the decision in Livermore v. Bagley, 3 Mass. 513, should require us to come to a different result in the present case from that stated in Barnard v. Graves.

The evidence being admissible, we think it was such as would have warranted the jury in returning a verdict for the plaintiff. The authority to arrest the body, which is given by Rev. Sts. c. 8, § 11, arises only where the collector cannot find sufficient goods upon which to levy. This provision continues in force at all times previous to an act of arrest.

Exceptions overruled.