
    James Moore, Appellant, v. J. J. V. Westervelt, Sheriff and Respondent.
    The omission of a party on whose behalf a sheriff is acting to interfere with him in the discharge of his duties, or to complain of the manner in which they are performed, is no evidence of his assent to the sheriff's neglect or violation of duty.
    Hence where such omission is the only proof of the assent of the party that is relied on, the question whether the assent was given ought not to be submitted to the jury.
    (Before Campbell, Bosworth, and Emmet, J.J.)
    December 10, 1852;
    March 26, 1853.
    A vessel in the custody of the sheriff was lying near one of tW wharves of the city, when there were strong indications of an approaching storm, but he took no measures himself nor instructed any one to take any measures on his behalf, for the safety 6f the vessel, and during the night a storm arose in which she sunk.
    Held—that the question whether reasonable care and diligence had been used by. the sheriff to guard the vessel against the consequences of the storm ought not to have been submitted to the jury, but a positive instruction ought to have been given that he had been guilty of negligence, which rendered him liable.
    Upon these grounds new trial ordered. Costs to abide event.
    This was an action to charge the defendant for neglect of duty as sheriff of the city and county of Yew York. The plaintiffs in September, 1848, before this action was brought, commenced an action in this court against Lewis Hoffmann, then master of the schooner “ Calcutta,” lying in the port of Yew York, to recover the possession of 161 tons of coal, then on board of said schooner, and by the bill of lading under which it had been shipped from Philadelphia to Yew York, consigned to the plaintiff.
    The sureties in that action having been excepted to, the defendant having, as sheriff, the papers by which it was commenced, to execute, instead of immediately removing the coal from the vessel and putting it in a secure place, left it on board, during the period allowed by law for the sureties to justify. ■ The schooner was heavily laden and leaky, and a storm arising, was sunk, and the coal damaged. The plaintiff having recovered in that action, brings this, to recover the damages alleged to have been sustained by the sheriff’s neglect to remove and put the coal in a secure place.
    The complaint charges, that on the 28th of September, 1848, being the owner of a cargo of coal, on board schooner Calcutta, Hoffman master, the plaintiff commenced a suit against Hoffman, and made a claim in due form of law, to have the property delivered to him.
    That the defendant received the papers, approved the undertaking on the part of the plaintiff, served the papers on Hoffman, found the coal on board the vessel, and assumed to seize it; but instead of taking it from the heavy laden vessel, he put a man in charge of the coal, and left it on board till the sureties should justify.-
    That this was wrongful on the part of the sheriff, and that he ought to have taken the coal from the vessel, and put it in a secure place.
    That before the sureties justified, bad weather came on, and the vessel sunk with the coal.
    That the sureties justified in due time, and the coal was demanded of the sheriff by the plaintiff, &c., but he declined to deliver it.
    The defendant admits in his answer the receipt of the papers, &c., and substantially all the above facts, except the allegation that it was his duty to take the coal from the vessel, and put it in any more secure place, and insists the coal was safe against ordinary, perils, but sunk by means of a severe gale.
    He also sets up, that after the suit was commenced, he delivered the coal to the plaintiff, and offered to pay the costs of the suit.
    The plaintiff replies that the coal was not safe where it was, and that it did not sink -by the act of God, but by the defendant’s neglect of duty.
    He also denies the alleged delivery after suit, and says it was after he had been at the expense of getting up the coal, that the pretended delivery was made.
    He states the damages sustained by him in being put to expense in getting up the coal, &c.
    Ou the trial there was evidence tending to prove, that when the deputy went with Mr. Moore to serve the order of delivery, Hoffman, the defendant in that action, offered to surrender the coal at once, and Moore said he wanted it, but that the deputy told him the coal was in his possession, and he must keep it till the sureties justified.
    That no further communication took place -between Moore and the sheriff, or his keepers; that the keeper was not directed to see to the safety of the coal, but a watch was pretended to be set against the removal of the vessel.
    That the keeper was informed of the approaching storm, and refused to allow the captain to remove her. That she was in an exposed position, and would have been safe on the other side of the pier.
    That on the third night after the seizure, the storm increased. That no keeper of the sheriff was there. The plaintiff justified his sureties and demanded the property, which was not delivered.
    The plaintiff objected to any evidence to show the assent of Moore to the coal remaining on board of the vessel, on the ground that such defence was not set up in the answer. The court overruled the objection, admitted the evidence, and the plaintiff excepted.
    The plaintiff alsb objected to evidence that Moore said he never meant to have brought the "suit. The court overruled the objection, and the plaintiff excepted.
    The plaintiff requested the court to charge several propositions which he declined, and the plaintiff excepted as to each, separately.
    The jury found a verdict for the defendant.
    The plaintiff appeals from the judgment entered on the verdict. The questions presented, are questions of law arising on exceptions to the charge, and to refusals to charge, as the plaintiff requested. The parts of the charge made, and the refusals to charge as the plaintiff requested, which are reviewed and considered by the court on this appeal, and the evidence relating to the points covered by such parts of the charge, and to such requests to charge, appear in the opinion of the court.
    
      H. P. Hastings, for appellant,
    argued the following points.
    I. The court erred in admitting evidence for the purpose of showing any assent of Moore to what the sheriff did, and in submitting any such assent to the jury.
    1. The complaint charges the defendant with a breach of duty in not moving the coal from the vessel, and the answer, so far from setting up any interference of the plaintiff Avith the execution of the order of delivery, admits the leaving the coal on board, and insists in law that it was not the defendant’s duty to remove it, till the sureties should justify. The only question upon this part of the case is, whether the law required the defendant to remove it. If it did, the consent of Moore would discharge the sheriff, but such affirmative defence should have been pleaded (Kelsey v. Western, 2 Com. 506).
    
      2. The evidence given was not sufficient to authorize a jury to find that Moore in any manner dispensed with any duty of the sheriff, or interfered with the execution of the order, or made the deputy or keeper his agent to, take care of the property. On the contrary, the evidence of one of the defendant’s witnesses is, that Moore referred the party to his attorney, and refused to interfere even by taking the property into his possession then; and of all, that the deputy said the coal was in his possession, and the keeper was his deputy to take care of it.
    II. The court erred in admitting evidence that Moore said he never meant to have sued the sheriff, &c.
    1. The facts were all clearly proved, and this declaration of Moore could not tend to prove or disprove any material fact in the case.
    
      2. Immaterial facts are none the more admissible because the declarations of the party.
    3. The declaration relates only to the intention to sue, and in no manner negatives the existence of just cause of action.
    4. If this evidence were merely irrelevant, the admission of it would be error; but it is worse than that—actually calculated to prejudice the jury against the plaintiff’s case.
    IH. The court erred in refusing to charge that the plaintiff was entitled to recover upon the facts admitted in the pleadings and clearly proved.
    1. Such charge is proper in all cases where the evidence is so clear, that a verdict the other way would be set aside as against evidence (Woodbeck v. Keller, 6 Cow. 118; Stevens v. Fisher, 19 id. 181).
    
      2 There was no dispute about the facts that the plaintiff was entitled to the delivery of the property, when he demanded it, and the sheriff did not deliver it.
    3. There was no dispute about the facts, that the coal was not taken from the vessel of Hoffman, nor Hoffman and his men expelled from the vessel, nor any keeper put in the possession or care of the vessel as to her safety.
    
      4. There was no dispute about the facts, that the vessel was heavy laden, on the north-east side of the pier in an exposed situation; that the wind was from the north-east when the blow came on; that it came on gradually, and the vessel might have been removed, and that the other side of the pier was safe against any wind.
    5. There was no dispute about the facts that the' storm was coming on, on Saturday afternoon; that Mr. Hoffman called the keeper’s attention to the question whether she would not sink, and that the keeper told him, Moore or the sheriff would be responsible, and that he should not remove the vessel.
    6. There is no dispnte about the facts, that the keeper was not charged to take care of the safety of the vessel, and did not take any care of it whatever.
    7. There is no dispute about the fact, that she did sink where she lay.
    8. The pleadings had admitted the fact, that the coal was not removed, nor the vessel removed, and insisted that it was not the duty of the sheriff to do either, and this was a question of law.
    
      9. There was no fact, therefore, to submit to the jury, but the amount of damages, and, particularly, there could be no excuse for submitting whether the sheriff took reasonably prudent care of the coal from the danger of sinldng, when the proof was that-he took no care.
    IV. The court erred in refusing to charge as requested by the plaintiff’s second proposition. 1. If Hoffman was willing to have the coal delivered to Moore without justification of sureties, and offered that it might be, it was the duty of the sheriff to deliver it. 2. The court refused to submit whether such assent was given, or say what effect it would have, but submitted whether the parties agreed to settle the suit, which nobody pretended.
    V. The court erred in refusing to charge that it was the duty of the sheriff to have taken the coal from the vessel and the custody of Hoffman, and put it in á secure place, according to the third or fourth proposition' of the plaintiff. 1. The charge, without responding directly to this, substantially denies the correctness of the proposition, by submittingvto the jury only that if the sheriff, after leaving the coal on board of the vessel, did not take ordinary care, &c., he was liable. (Lisher v. Pierson, 2 Wend. 345; 11 id. 58; 17 id. 518. Browning v. Hanford, 5 Denio, 586. 5 Hill, 588. Opinion of Cowen in Supreme Court and Putnam in the Court of Errors, and authorities there cited.) 2. By saying that if Moore assented to leaving the coal on board, then the mere fact that the coal was not removed from the vessel would not make the sheriff liable, would seem to imply that he would be liable, if no such assent were given; but this is only an evasion of the question proposed, and not answering it in favor of the plaintiff; for, without regard to how the jury find upon the question of the assent, he submits that the sheriff is liable only if the keeper after-wards omitted ordinary care, without in any event authorizing a verdict for the plaintiff, on the ground that the coal was not removed, though it remained without the plaintiff’s assent. 3. The charge that if Hoffman had objected to leaving the coal on board, it would have, been the duty of the sheriff to have removed it, was calculated to mislead the jury and cause them to believe that it was purely a matter between the sheriff and Hoffman, whether the coal should be left on board; whereas, Hoffman’s acts or consents, one or the other, could not affect the plaintiff; and the evidence was that Hoffman did object, and asked if there was no way the coal could be got off the vessel.
    VI. The court erred in not charging as requested by the fifth proposition submitted by the plaintiff, that as the evidence showed that the vessel would have been safe if removed to the other side of the pier, and the sheriff neglected to remove her, or watch her safety, he is liable in this action. 1. These facts appear by uncontradicted evidence. 2. It appeared that the safety of the vessel was not watched at all. 3. The question whether the vessel would have been sunk if the sheriff had taken care of her safety, was not even submitted to the jury, but only whether he took reasonable care, when he took none. 4. The negligence was actually proved, and if the right of action depended upon negligence, the plaintiff was entitled to recover upon the evidence.
    VH. The court did charge that the sheriff had no right as against Hoffman to use the vessel as a place of deposit, hut erred in declining to charge the residue of the eighth proposition of the plaintiff, that Hoffman was under no obligation to. take care of the safety of the coal after the sheriff took charge of it; from which the jury inferred that it belonged to Hoffman to take care of it.
    VIII. The court erred in refusing to charge as requested by the eighth proposition of the plaintiff.
    IX. It also erred in refusing to charge according to the 9th proposition of the plaintiff.
    X. The general scope of the'charge as given, was erroneous, in placing the liability of the sheriff upon the question, not whether he took the property into his possession and put it in a secure place, but whether he took ordinary care of it where it was.
    
      E. Sandford, for respondent,
    made the following points.
    I. The evidence tending to show an assent of the plaintiff to the acts or omissions of the sheriff in leaving the coal on board the vessel, or in the place where it was in the vessel, was properly admitted. Such defence was set up in the pleadings. The gravamen of the action was, that as against the plaintiff the defendant had wrongfully and negligently omitted to take said coal from said vessel, and left the same in the vessel, and put keepers in charge of it there. These allegations are denied in the answer. The consent of the plaintiff to the act complained of, was a part of the evidence to sustain this issue on the part of the defendants. It was not in any sense new matter. In Van Gieson v. Van Gieson, the Court of Appeals decided that an averment of payment in an answer to an action on a note, was not a pleading of new matter, but was merely taking issue on a material averment of a breach of the contract. It amounted only to • a denial of a material allegation in the complaint. The allegation, if made in defendant’s answer, of an assent of the plaintiff to the acts complained of, would have been, in legal effect, a denial that the defendant had been guity of the negligence charged. Facts, and not the evidence to prove the facts, are to be alleged in the pleadings. (Corwin v. Corwin, 9 Bart. 219, 226. Stone v. Depuga, 4 Sandf. S. C. R. 681.)
    II. The exddence given xvas for the consideration of the jury, in connexion with all the circumstances of the case. There was evidence for their consideration, and whether the court would or would not have come to the same conclusion upon it at which the jury arrived, the verdict will not be set aside from any possible difference between the court and the jury as to its effects. This issue has been tried already before three different juries, each of whom have rendered a verdict for the defendant, and the questions"of fact should be deemed to be settled by three concurring verdicts. (Green v. Brown, 3 Bart. R. 119. Douglas v. Trusey, 2 Wend. 352-56. Keeler v. Firemen's Ins. Co., 3 Hill, 250-56.)
    III. The evidence of Moore’s declaration was competent, because it was made by the plaintiff, and relevant, because it related to the subject of this suit. It was quite material as showing, in connexion xvith the other evidence, an implied admission by Moore that he knew that the defendant had not omitted to perform his duty. It xvas for the jury to say how far it negatived the existence of a just cause of action. It is sufficient for the court that it had a bearing on'that question.
    IV. The court properly refused to charge that, upon the facts admitted by the pleadings, and those proved by uncontradicted testimony, the plaintiff was entitled to recover. 1. There was clear proof of the fact, that when the papers were served, Hoffman offered to give up the coal, and plaintiff declined to receive it, and referred Hoffman to plaintiff’s attorney. This was a refusal to accept it until costs were paid. 2. It is equally undisputed, that up to the time of the service of the papers, all parties deemed and believed the coal to be perfectly safe where it was. 3. It is equally clear that plaintiff knew where the coal lay; knew that the sheriff put keepers over it in that location, and expected to retain it there until the sureties justified. That the plaintiff* made no suggestion in regard to its removal. 4. That the captain of the vessel made no objection to the use of the vessel for that purpose. That the vessel was properly manned at the time with persons to look after its safety, and the only duty to be performed by the defendant was to see that no coal was removed. There was no expulsion of Hoffman and his men from the vessel, nor any interference with their moving her, so long as the coal was not carried away. 5. That whether the safety of the vessel on one side of the. pier would be greater than on the other, depended wholly upon the course from which the wind should happen to blow. That she was safe where she was all Saturday night, and all Sunday, and until Monday morning; if - she had been moved, and the wind had happened to shift, and blow from the south-east, she would have been carried into a more dangerous situation. 6. That the vessel had been lying along side of the wharf, where she sunk, all the time for two weeks, only four days of which -her coal was in charge of the sheriff. That plaintiff’s yard was two blocks from the vessel. That plaintiff' had no apprehensions for its safety during this storm; and that all parties acted upon an honest conviction that the vessel and coal were safe as they were. 7. That the removal of the coal from the vessel, and the hiring of a place to store it, until the sureties justified, would have been very expensive to the plaintiff ; this view, no doubt, influenced him, in sanctioning the effort of the sheriff to retain the coal as it was, so that but one removal might be made. 8. Although it be true, that the vessel did sink where she lay, there can be no dispute that the coal was in her at the timé, by the assent of the plaintiff, to save expense to him; that he afterwards took the coal without objection, and said he never intended to commence this suit. 9. The sheriff was not bound to exercise any greater care than Moore did, as a prudent and reasonable man, before the levy. Moore had left the coal for ten days in that vessel, in the same place, with the vessel in the same charge. The defendant put a keeper over the coal, and otherwise took the same care that plaintiff did. 10. It was a question entirely for the jury, whether the altempt to move the vessel after the storm had commenced, in,view of the difficulty of getting around the end of the pier against the wind and waves, and the probable change of the wind, would not have been more hazardous than to leave her as she was.
    V. The evidence did not warrant the charge secondly requested. Moore said, in answer to that offer, that “ he could not take it then, he had nothing to do with it then, and Hoffman must see Moore’s attorney.”
    VI. It was a question for the jury, upon all the evidence, whether the vessel, where it was, was not in a reasonably secure place to keep the coal; and the fourth request to charge was properly refused.
    VII. It was also a question for the jury to say, whether there was not exercised all reasonable and proper care to guard against the sinking of the vessel; placing her at a suitable wharf, in a reasonably secure position, and there leaving her fast, would be such proper care. It was not necessary that it should have been watched, after these precautions, with an eye that never sleeps. Watching could not have prevented her sinking. The question of the sufficiency of the watch and the expediency and duty of removal, were for the jury.
    VIII. The evidence shows that Mr. Hallenbeck thought she was safely moored and fastened; that he was an experienced navigator; that she was properly fastened at the time ; and that if all hands had been there on the morning of the accident, they could not have prevented it. It was for the jury, upon the evidence, to decide the issue whether the defendant had been guilty of any negligence.
    IX. The seventh request to charge had no bearing on the merits of this case. The eighth request presented only a part of the evidence bearing on the general question of negligence, and the judge was not bound to submit separate portions of the testimony in that form to the jury.
    X. The charge of the judge was correct, unless the parties so agreed to settle as to discharge the sheriff. There was no determination of his rights or liability by their agreement.
    XI. The judge correctly defined the rule by which the jury were to be guided in coming to them determination of the issue upon the evidence. Also in reference to the inference they might draw from the circumstances of an assent on the part of the plaintiff, and in the legal conclusion, if the jury should find such an assent.
    XII. There was no room for any pretence or question upon the evidence, that the vessel, in the position she occupied at the time of the levy, was not in as safe a place to keep it, as in any other that could have been selected. There was no duty, imposed by law, upon the sheriff to remove it from that place. The only question arising upon the evidence was, whether there was any want of care in guarding the property against the storm which subsequently arose, and which sunk the vessel. That storm alone created the danger and the injury. This question was fully and fairly submitted to the jury. It is settled law that a sheriff is not liable for any loss to goods by fire, or other accident, unless it is connected with his own negligence. (Browning v. Handford, 5 Hill, 588, 591; Story on Bailments, § § 130, 620; Jenner v. Joliffe, 6 J. R. 9.) The sheriff is responsible only for good faith and ordinary diligence; and the law requires some proof of negligence, to overcome the legal presumption that he has done his duty. Showing that a loss has happened, does not throw the burden of proof on the • officer; it must also be shown that when it occurred he was not exercising such ordinary diligence as belongs to a prudent and honest discharge of his duties. (Burke v. Trevitt, 1 Mason’s R. 96, 101.) ¡Neither of the cases cited by the plaintiff tends to sustain his proposition that the law made it the duty of the sheriff to have the coal taken from the vessel at any time. Browning v. Handford, 5 Denio, 586, was decided solely upon the effect of taking a receipt for the property; and Lisher v. Pierson, in the several volumes of Wendell cited, turned upon the provisions of the Eevised Statutes, relative to the situation of the property where a claim of title was interposed, until that claim should be tried.
    The plaintiff was not only bound to show that the sheriff did not" remove the boat, and that by removing the boat, the loss might have been prevented; but also to show such circumstances as made the omission to do so a neglect of ordinary prudence on the part of the sheriff. There is no fixe'd rule of law prescribing his action, and the question, in all cases of this class, is, whether in the exercise of due care and caution, the course pursued was that which a reasonably prudent man would have adopted; and this is a question exclusively for the jury. (Williamson v. Howard, 13 How. 101, 109.)
    XIII. The charge of the judge fairly and 'fully submitted to the jury the only question in the cause, which was, whether the sheriff had "been guilty of the negligence charged in the complaint. The particular propositions presented "by the several requests to charge, embraced only partial views of portions of the evidence, and were not propositions of law; so far as it was proper to include them, they were embraced in the charge as given.
    XIV. Three several juries have concurred in the verdict that the defendant was not guilty of the neglect charged. After these repeated verdicts upon a question of fact, the court should not interfere, even though the verdict should, in their opinion, be against the weight of evidence. (Fowler v. Etna Ins. Co., 7 Wend. 270; Ex parte Bailey, 2 Cow. 479; Ackley v. Kellogg, 8 Cow, 223; Felter v. Whipple, 8 J. R. 369; Jackson v. Zimmerman, 12 Wend. 299; Overseers of Poor of Rochester v. Lunt, 15 Wend. 565.)
    XV. Tire judgment should be affirmed, with costs.
    
      H. P. Hastings, in reply,
    made the following points.
    I. The evidence of plaintiff’s consent that the coal should remain on board of the boat, does not tend to rebut the charge of negligence, but only that the sheriff was excused from ordinary diligence; it is in the nature of a license, which should be specially pleaded. This case differs from Van, Gieson v. Van Gieson in this, that in that case the plaintiff in his complaint, was obliged to aver non-payment to make out his breach, and proof of payment negatived one of the material allegations of the complaint. Hot so in this case; the plaintiff does not aver that the coal was left without his consent, nor was he bound so to do. The plaintiff could not be prepared by the pleadings to meet any such state of facts. The evidence was clearly inadmissible.
    II. The verdicts of the jury establish nothing, because they have been set aside for error in law.—Non constat, but if the ruling of the court had been correct, the verdicts would have been the other way. We are to presume they would, or the court would not have set them aside.
    III. The evidence of Moore’s declaration that he did not intend to sue the sheriff, was clearly inadmissible, because the only question for the jury was, whether the plaintiff had a just cause of action. His intentions did not, nor could not affect the justice of his cause of action. Most men do not sue when they have a just cause of action, and frequently express their intentions to that effect, and many do when they have not. It is a declaration which may be used in the hands of a skilful counsel to prejudice a cause, and throws no light at all upon the merits of the cause.
    IV. If the facts admitted in the pleadings, and the evidence in the‘case clearly showed that the plaintiff was entitled to recover, the court ought to have so charged. 1. Referring a party to his attorney, is not tantamount to a refusal to receive a delivery, but the reverse. 2. The fact that the boat was safe when the papers were served, imposed the duty upon the sheriff, of keeping it so, and is no excuse for negligence. 3. If the plaintiff knew where the boat lay at the time the papers were served, he could not have known that it would remain there unless he possessed the gift of prophecy. It is plain that it ought not to have remained where it did. It might have been safe when he knew it, but it is perfectly plain it was not sate afterwards. 4. The coal was in the custody of the sheriff, and his custody was not interfered with by the plaintiff. Hor could it be. He had full and absolute control over it. The plaintiff had a right to look to him for its safe keeping. The sheriff cannot shift the responsibility of its safe custody from himself to the plaintiff. 5. The boat was safe, undoubtedly, until the approach of danger. Others saw the danger, and warned the sheriff. That there was danger, is proved by the loss. That it could have been foreseen and provided against is proved by the fact that the sheriff was warned in season, and a perfect protection suggested. Hot-withstanding the variableness of the wind, experienced men could see the approach of danger. 6, 7, 8, 9,10. There is no evidence as to the plaintiff’s apprehensions, nor have they anything to do with the case. He could not interfere. Moore’s conduct did not impose upon or release the sheriff from any duty. If Moore had been over careful, the sheriff would not therefore have been bound to exercise diligence. Moore did not pretend .to interfere with the- sheriff in any way in the exercise of Ms duty, and there is nothing in the case to relieve the sheriff from his obligation to take due care of the goods. It is plain that he did not, and the jury ought to have been instructed to bring in a verdict for the plaintiff.
    V. The fifth, sixth and seventh points of defendant, do not show that the plaintiff’s request to charge secondly was incorrect. Moore’s reference to Ms attorney was proper, because the whole matter was then in the custody of the law, and he did not know how far his own acts might affect his rights, but the sheriff interposed and made the reference of no effect. He claimed the absolute custody and control of the goods. He assumed all the responsibility of their keeping. Hallenbeck’s experience as a navigator is problematical. He was employed tMee years on a steamboat. Itniight have been as a stoker. If watching would not have prevented the disaster removal would. The boat was not in a suitable and safe place. On this point the testimony was all one way. Any number of witnesses could not prove the contrary, and there is uncontradicted proof that the danger was apparent in time to afford a remedy. The negligence of the sheriff is placed beyond question. There is nothing to submit to a jury on this point, and if he was not excused by the act of the plaintiff, he is clearly liable.
    VI. The seventh request to charge was proper, and the court ought to have charged in accordance with the request, because there had been an attempt to shift the obligation of taMng care of the coal, upon the master; and because, as a matter of law, the master was under no obligation to take care of the coal— the sheriff had no right to impose any such duty upon him, and the jury ought to have been clearly instructed to that effect, that they might know as a matter of law where the obligation for the safe custody of the coal rested. The eighth request to charge is clearly correct, and embraces only a distinct point in the case, and the charge ought to have been in accordance with the request.
    VII. If the sheriff choose to leave the coal on board the boat, and by the exercise of reasonable care the boat could have been removed to a safe place, the law imposed the duty of removal upon the sheriff, inasmuch as he assumed the exclusive custody and control of the- coal. It is true that the storm alone created the danger, but this danger might easily have been averted; and it is preposterous to assert the contrary. The sheriff would not permit interference, even when warned of danger. Hoffman testifies without any possible interest and without apparent bias. It is preposterous to assert that because the coal was in the custody of the law, no one was bound to look to its safety and that it was necessarily devoted to perfectly apparent and inevitable destruction.. The case of Browning v. Hanford, 5 Denio 586, is directly opposed to any such doctrine. But it is not necessary to invoke the doctrines of that case, to make the sheriff liable in this. This is a clear case of negligence on the part of the sheriff, arid it is impossible to get around or over it. It is not true that those acting in a special or official capacity, are not bound to take more care of the property intrusted to their charge than a prudent man in the ordinary discharge of his business would with his own. They are paid for their care. It is their special duty. The charges of the sheriff for taking care of property are very onerous ; and to say that he is only bound to take ordinary care after all, is absurd. There is no hardship in the case : the office of sheriff is not only voluntarily assumed, but eagerly sought after; the emoluments are large, the responsibilities are by no means commensurate.
    VIII. The question of negligence is not the only qxiestion as stated in respondent’s thirteenth point; and, as to that question, the appellant claims the benefit of all his exceptions.
    IX. Where three several verdicts have been rendered, and two set aside as being against the weight of evidence merely, there might be some propriety in the court’s hesitating to set-aside the third for that .cause only; but when the other verdicts were set aside for errors of law, there is no impropriety in asking the coxirt to set aside the third as being against the weight of evidence, and if it is against the weight of evidence, the party is as much entitled to have it set aside as though it was the first verdict instead of the third.
    X. The judgment should be reversed with costs.
   By the Court. Bosworth, J.

The judge charged that “ the jury might infer, if they thought the circumstances warranted it, an assent on the part of Moore to the leaving of the coal on board of the vessel. If this were assented to by Mr. Moore, the mere fact that the deputy sheriff left the coal on board of the vessel, would not render the defendant liable in this action.”

The plaintiff insisted that no such question should be submitted to the jury, because no such defence was set up in the pleadings, and because there was no evidence authorizing the submission of any such question.

There was no evidence authorizing the submission of any such question, unless the fact that the plaintiff knew the coal was not removed, and did not remonstrate with the sheriff against such conduct, is evidence from which such an assent may be inferred.

An omission to interfere with a sheriff in his discharge of the duties imposed by law, or to object to, or complain of the manner in which he performs them, is no assent to his neglect or violation of duty.

The statute made it the duty of the sheriff to take the property (Code, § 209) and “ keep it in a secure place” (id. 215), and deliver it to the party entitled to it.

The schooner may not have been a secure place in which to keep the coal. The schooner was heavy laden, leaked badly, and would probably have sunk, if not pumped daily.

The sheriff did not take any measures to have her pumped, and although this was done, it was not done by men employed by the sheriff, or acting under his authority, or who had assured him such services would be performed.

This instruction, as I view it, was equivalent to charging the jury that although the schooner might be an insecure place in which to keep the coal, yet no liability would attach to the sheriff merely in consequence of his having left it in that place, if they found that Moore assented to its being left there.

The further proposition submitted in connexion with this was, whether the sheriff was wanting in reasonable and proper care in guarding the property against the consequences of the storm, which subsequently arose, and during the continuance of which tiie vessel was sunk. The jury were instructed that it was the duty of the sheriff to watch the property, and see if anything should arise, while it was in his custody, to endanger its safety, and to use due and reasonable care and diligence to prevent it; if that duty was not performed, he was responsible for the neglect, and the plaintiff was entitled to recover.

The plaintiff insisted that no such question should have been submitted, on the ground that there was no evidence tending to show that the sheriff took any care, or instructed any one..for him to take any care, to prevent the vessel being sunk or injured by the storm.

As I read the evidence of Hallenbeck, the sheriff’s agent, he swears expressly, “I had no charge to take care of the safety of the vessel; I was charged by the sheriff to take charge of the coal, and see that the vessel was not removed; I was not charged to see to her safety from sinking.”

He was at the vessel between five and six o’clock in the afternoon preceding the night on which she sunk, and although there were strong indications of a storm, and his attention was called to the dangerous position and condition of the vessel, he did nothing with a view to her safety. At night he left a police officer of that,ward in charge of her, to see that the vessel was not removed.

There was no evidence on which to submit the question, whether the sheriff was wanting in reasonable and proper care in guarding the vessel against the consequences of the storm which subsequently arose and sunk her. His own officer swore affirmatively that he neither took any such care, nor was charged by the sheriff with any such duty.

He also swears, that “ on Saturday, in the afternoon, about 4 o’clock, the captain came and asked me what would be the consequence if she sunk? who would be answerable for the property ? I said I could not say, but I suppose Mr. Moore or the sheriff; he then said he would not have anything to do with her; he spoke about moving the vessel; he never asked me if he could remove her; I should not have cared if he'had moved her from that place, so long as the coal was safe; the vessel lay fifteen or twenty feet from the end of the pier; I told him if that vessel was taken- away without my consent, or the sheriff’s consent, he would be liable for stealing.”

It seems to me that on such evidence it cannot be left to a jury to say whether the sheriff took reasonable and proper care to guard the property against the consequences of the storm.

Ho care was taken, or attempted to be, with a view to that object; no one was even left to watch it, with a view to guard it against such consequences. On the contrary, although it was raining and blowing in the afternoon, and although it looked likely for a storm, and in the night the wind inóreased in violence, nothing was attempted for the safety of the vessel. The agent went home and went to bed, and charged the police officer to see that the vessel was not removed, but not to do anything to prevent her being sunk.

She was sunk, and the jury may have, exonerated the defendant, on the ground that Moore assented to the coal being left on board the vessel, and having- so assented, the sheriff took proper and reasonable care to guard the coal against the consequences of the storm.

There was no evidence to warrant the submission of either of these questions, or on which a jury could properly find either of them in favor of the defendant.

So far as the case depended on these questions, I think the jury should have been instructed, that if the vessel, in the condition in which she then was, was not a secure place in which to leave and keep the coal, considering the season of the year, and the storms commonly incident to it, the sheriff was liable for any damages resulting from its being left in that place.

If he had removed the coal to a secure place, it would not have been damaged by the storm, and it is not to be assumed that it would have been equally damaged in a secure place.

It was damaged by being on the place where it was. The sheriff neither removed it, nor attempted to protect it from the storm that injured it, notwithstanding his attention was called to the danger of its position, to his liability if the vessel was sunk, and was told by the captain that he would have nothing to do with it.

It may very w.ell be, that on another trial it may appear that the captain of the schooner assented to the coal being left on board, and to the use of the schooner by the sheriff, as a place of keeping it.

If this should be so, such evidence may possibly be given as will render it proper to submit to the jury as questions of fact, whether that was a secure place in which to keep the coal; and whether the indications of a storm were such as to require of the sheriff any extra precautions for the safety of the vessel.

On the case as presented to us, we agree in the opinion, that there was no evidence authorizing ■ the submission of the question of Moore’s assent to the coal being left where it was, or of the question whether the sheriff was wanting in proper care in guarding the property against the consequence of the storm which subsequently arose and during which the vessel was sunk. A .new trial must be granted, with costs to abide the event.  