This is an action of contract or tort against the defendant, a master in chancery. On April 27,1923, the plaintiff recovered judgment against Benjamin W. Warring-ton upon which execution issued, and a certificate authorizing his arrest was obtained. Warrington after his arrest requested the defendant Crawford, as master in chancery, to take a recognizance with surety for his release. , The defendant accepted as surety J. Roger Wallace. It appeared that the surety was, at the time, about three weeks under twenty-one years of age. Upon action brought against the surety for breach of the recognizance, there was a finding in his favor because of his minority. In the case at bar the judge found for the defendant. It appeared that before the defendant accepted Wallace as surety, Wallace made an affidavit in which he stated among other things that he was more than twenty-one years of age. The testimony also tended to show that the defendant made inquiries of Wallace concerning his age and read to him the affidavit before it was signed. The defendant testified that the surety weighed one hundred and fifty-five or one hundred and sixty pounds and appeared to him to be a man at least twenty-one years of age.

There could be no recovery on the count in contract because there was no privity of contract between the plaintiff and the defendant. Van Kuran v. May, 7 Allen, 466.

The plaintiff based his count in tort upon the alleged negligence of the defendant in omitting to institute such inquiries as would have shown that the surety was a minor, and in not having the surety sign the usual certificate as to his age. The allegation as to the certificate was not supported by the evidence. The judge, at the plaintiff’s request, ruled that a master in chancery in taking a poor debtor *29recognizance acts as a ministerial officer and is liable if he acts negligently in accepting a surety on a recognizance. In view of this ruling the finding for the defendant necessarily included a finding that the allegation of negligence had not been proved.

The plaintiff’s contention, that the defendant is under an absolute liability to the plaintiff because he approved a surety who was under age, if open to him under the pleadings, cannot be maintained. See Mechem, Public Offices and Officers, § 762. We find no error of law in the rulings of the trial judge. Exceptions not argued have been treated as waived.

Exceptions overruled.