
    Moore v. Westervelt.
    
      Responsibility of Sheriff.
    
    When a sheriff seizes under a writ of replevin, he is not, before the-plaintiff’s sureties have justified, bound to deliver possession, and is not an insurer of the absolute safety of the goods ; whether he has been guilty of negligence in not taking proper care of them, is a • question for the jury.
    In an action against a sheriff, for not taking due care of a cargo of coal,. seized on a writ of replevin, the bill of lading is not evidence of the quantity of coal on board.
    Moore », Westervelt, 1 Bos. 357, reversed.
    Appeal from the judgment of the Superior Court of the city of New York, entered upon a verdict. (Reported below, 1 Bos. 357.)
    This was an action against the sheriff of New York for negligence in not taking due and proper care of a cargo of coal, which he had taken possession of, by virtue of a writ of replevin, issued at the suit of the plaintiff.
    In September 1848, the plaintiff commenced an action,, in the nature of replevin, against Lewis Hoffman, master of the schooner Calcutta, then lying in the port of New York, to recover possession of 161 tons of coal, on board of said schooner, shipped from Philadelphia to New York, and by the bill of lading, consigned to the plaintiff. The defendant seized the property on the writ, but the-defendant’s sureties not having' justified, he declined to-deliver the same, but left it on board the vessel, and placed a keeper in charge. *The schooner was heavily laden and leaky, and before the plaintiff’s «sureties had justified, a storm arose, the vessel was sunk at the wharf, and the coal damaged. The plaintiff having recovered in the replevin-suit, brought this action against the sheriff, for his alleged negligence, in not removing the ■coal to a place of' safety. On the trial, the plaintiff, under exception, was allowed to give in evidence the bill of lading, to show the quantity of coal on board the schooner. The court charged the jury that there was no question of fact for them, except the amount of the plaintiff's damages, to which an exception was taken. The learned judge also charged that the bill of lading was some evidence of the amount of coal on board the vessel, to which ■also the defendant excepted.
    The plaintiff had a verdict, and the exceptions having been ordered to be heard, in the first instance, *at' general term, judgment was there rendered upon the verdict, and the defendant took this appeal.
    
      Vanderpool, for the appellant.
    
      Bmrlock, for the respondent.
    
      
       See the facts and the pleadings more fully stated, in a former report of the case, in 2 Duer 59.
    
   Selden, J.

There is no doubt, that a sheriff, marshal, ■or other officer of like character, who takes property by virtue of legal process, is under some obligation to see to the protection of such property against injury or loss; but to what precise degree of care he is bound, under .the various circumstances which may attend such a taking, is not very well settled by authority. Judge Story, in his work on Bailments, § 130, in respect to the liability ■of such an officer, says—“ He would doubtless be responsible for gross negligence and fraud; but Avhether he would be responsible for ordinary negligence, does not ■appear to have been decided by any adjudged case; although, as he is a bailee for a compensation, 'it may he :thought, that he. ought to be bound, by the common rule ■in such cases, to ordinary diligence.” And ho refers to the cases of Jenner v. Joliffe (6 Johns. 9), and Burke v. Trevitt (1 Mason 96).

It strikes me, that this is stating the doctrine somewhat too faintly. A sheriff or marshal is not an agent voluntarily selected, but a public officer, whom the party is compelled to employ; one who is clothed with a public trust; .chosen by the public for his supposed fitness for the discharge of important and responsible duties. He stands, moreover, between two opposing parties, being-made by law the custodian of the property, about which they are in some measure contending, and which may, therefore, justly be considered as exposed to some perils which would not attend a mere ordinary bailment. Under • these circumstances, the doubt, in my judgment, is not, whether the officer is bound to take ordinary care, but whether he Ought not to be held to a somewhat higher degree of diligence.

But it is unnecessary to determine here the precise degree of negligence which would render a sheriff liable, in an "^ordinary case, where he removes the property from the possession of the defendant, and takes it entirely under his own charge; because, whatever rule may be adopted on this subject, if it is to be regarded as applicable to the present case, the question of negligence should, I am inclined to think, have been submitted to the jury. There are, no doubt, cases depending entirely upon questions of negligence, where the proof is so clear, that the court is justified in assuming, as a matter of law, that the negligence is established. But questions of that nature are peculiarly appropriate for the consideration of a jury, and courts are. very justly cautious about encroaching upon their province in this respect. That there was negligence somewhere, in the present case, provided we assume that if the vessel had been removed, during the storm, to the south side of the pier, the disaster would probably have been avoided, is pretty certain. The man placed in charge by the sheriff was warned of the danger ; but as his instructions, as construed by him, were limited to seeing that the vessel was not removed, he declined to interfere. There is a discrepancy between his testimony and that of the master, upon the question whether he refused to permit the location of the vessel to be changed. The whole difficulty may have grown out of the want of specific instructions to the man to whom the matter was given in charge;»if so, this would be a species of negligence for which the sheriff must be held responsible.

He is also, under the circumstances, responsible for any negligence or want of ordinary skill on the part either of the man employed to watch, or of the master of the schooner; for, by leaving the coal in charge of the latter, without other control than that of a man to watch and see that the vessel was not removed, he necessarily made the master his agent, to see to the security of the coal, in the place where it then was, and became, therefore, responsible for^ any negligence or want of skill on the part of the latter, in taking care of the property. It would seem to follow, that if the jury should believe that the vessel would not have sunk, if she had been removed to the south side of the pier, and that due and proper care required, after *the storm arose, that she should have been so removed, the sheriff must be held responsible for the negligence which prevented the removal, whether it arose from a want of proper instructions, a misunderstanding of those instructions, or from any other cause. ■

But the plaintiff's counsel insists, that the defendant is liable at all events, irrespective of the question of negligence. His position is, that it was the imperative duty of the sheriff to remove the coal, immediately, from the vessel, and take it exclusively into his own hands; that he had no right to leave it, for any time, under the control of the defendant in the suit; and that having done so, he became absolutely responsible for its safety. The principal authority relied upon to support this position is the case of Browning v. Hanford (5 Hill 588; S. C. in Error, 5 Denio 586). That was a case of goods seized upon execution, and left in the possession of the defendant: a receipt being taken from a third person, by which the latter agreed to deliver the goods upon demand, or pay their value. When the case was first before the supreme court (5 Hill 588), it turned mainly upon the question as to the degree of responsibility assumed by the sheriff, in leaving the property in the possession of the defendant, after taking a receipt; and it was held by three of the justices (the other dissenting) that his responsibility was that of an ordinary bailee for hire. A new trial was granted upon that occasion, and the case afterwards came again before the supreme court (7 Hill 120), where it was decided upon a single question, relating to the competency of the sheriff’s return upon the execution, as evidence in his own favor; a new trial being denied. The case was then carried to the court of errors (5 Denio 586), where, in addition to the question as to the return, the court eonsid* ered the question passed upon by the supreme court, when the case was before it upon the first occasion, as to the degree of responsibility resting, under the circumstances, upon the sheriff. Different opinions were expressed; but as it is difficult, if not impossible, to ascertain upon which of the two questions involved *in the case, the new trial was granted, nothing is settled by the decision as to the point under consideration here.

• But, however that question may be ultimately settled, its decision does not, I think, control the present case. Assuming that, in ordinary cases, a sheriff, if he leave goods taken upon execution in the hands of the defendant, makes himself absolutely liable, and that his responsibility Avould generally be the same, Avhether the goods be taken by virtue of mesne or final process, as to which I express no opinion, I nevertheless think, that under the peculiar circumstances of the present case, the sheriff did not make himself liable, at all events, by omitting forthwith to remove the coal from the vessel. The sureties of the plaintiff had not justified, and until that was done, he could not know that the plaintiff would entitle himself to the possession. The removal of the coal would have been attended with a heavy bill of expense; as he could not safely deliver it to the plaintiff, until the sureties had justified, he would have had to procure a place to store it; and this would have involved the necessity of another removal, whether the coal had ultimately to be delivered to the plaintiff, or returned to the defendant. It is true, that as his process was only against the coal, and gave him no authority to seize the vessel, which must necessarily remain under the control of the master, the sheriff could not, with any propriety, have left the coal in the vessel, Avithout the consent, either express or implied, of such master; But I think the circumstances proved Avarrant the inference, that the latter did tacitly consent that the coal should remain on board, and that his right to control the vessel should be subordinate to the rights acquired by the sheriff. The latter aauis, therefore, I think, justified in omitting to incur the great expense of removing the coal, until it should be definitely settled, Avhether it Avas to be delivered to the plaintiff or not! We are brought, therefore, to the conclusion, that it Avas incumbent upon the plaintiff to sIioav some degree of negligence' on the part of the sheriff, beyond the mere fact of omitting to remove the coal, and that the loss occurred in consequence of such *negligence. It folloAvs. if I am right in the vieAv previously taken, as to the evidence upon the question of negligence, that the court erred in refusing to permit the defendant’s counsel to address the jury, and in giving positive instructions to the jury to find for the plaintiff.

But were it otherwise, the judgment must still be reversed for an error in the charge of the court, in respect to the effect of the bill of lading as evidence. Whether this document may not have been admissible for some purpose, is a question which it is unnecessary in this case to decide. In the case of Haddow v. Parry (3 Taunt. 303), which was an action upon a policy of insurance, the bill of lading, which was offered in evidence to show that the plaintiff had an insurable interest in the property, was rejected at nisi prius, by Sir James Mansfield, C. J., before whom the cause was tried; but upon motion for a new trial, the Chief Justice thought the bill, might, under some circumstances, be evidence upon "the question of title in the consignee, in a suit between him and a third party. The person who signed the bill of lading in that case was dead, and reliance was placed upon that fact. Mr. Phillips, however, seems to think such evidence admissible, to prove title in the consignee, as I should infer from his language, without regard to the death of the person who signed the bill. (2 Phil. Ev. 37, 39.)

Such evidence can only be admissible, if at all, in connection with proof of possession, by the party signing the bill of lading. It being unnecessary, however, to pass upon this question, in the present case, I shall express no opinion upon it. Even if the evidence was improperly admitted upon the question of title, I should not think the error sufficient to reverse the judgment; for the reason, that it was wholly 'unnecessary for the plaintiff to give any evidence of title, beyond the fact that the defendant had taken the property in a suit in which he Avas plaintiff; it not appearing that any claim of title had been made on the part of any other person. The sheriff was responsible, primd facie at least, to the plaintiff, and he shows no responsibility to any other party. '

*But whether the bill of lading was or was not properly admitted in evidence, upon the question of title, it clearly afforded no evidence whatever in regard to the quantity of the coal. If evidence on .the question of title, it is because it goes to qualify what would otherwise be primé, facie, evidence of absolute ownership by the master of the vessel, viz., the possession. ° But the bare possession of the master affords no evidence as to quantity; and, hence, the bill of lading, in that respect, is nothing more than his mere naked declaration, unconnected with anything which can give it force as against a third party. It is undoubtedly good, as an admission to charge the master himself; but is of no more force as against third persons than any other declaration he might make bearing upon their rights.

The court charged the jury “ that the bill of lading was some evidence of the amount of coal on board the vessel that it appeared that the vessel was heavily laden, and her tonnage at custom-house weight one hundred and thirty.-four tons; and the jury were to determine, upon the hill of lading, in connection with the evidence as to her being heavily laden, and her tonnage, how much coal was on board.” This part of the charge, which was excepted to, was very material. There was no other-evidence of quantity in the case, except that here alluded to; without the bill of lading, the jury would have been left on that subject entirely to the uncertain inference to. be drawn from the capacity of the vessel. The verdict was based, undoubtedly, upon the statement in the bill, and as that was clearly incompetent for that purpose, the judgment cannot be sustained.

Were it not for the necessity of reversing the judgment upon the point last considered, we should have felt bound to give to the facts a more critical examination; and might perhaps have come to the same conclusion wdth the superior court at general term, that the proof of negligence was so clear as to justify the court in taking the case altogether from the jury. Our conclusion, 1 owev.er, on that subject is, under the circumstances, of no controlling importance.

"The judgment must be reversed, and there must he a new trial, with costs to abide the event.

Judgment reversed, and new trial awarded. 
      
       The cases are very numerous, in which it has been held, that when the question of negligence depends upon the particular circumstances of the case, it must be submitted : see them collected in Bright. N. Y. Dig. 2767, 5108.
     
      
       It has been decided, in Pennsylvania, that a sheriff is absolutely liable for the forthcoming of goods levied on ; a felonious taking will not excuse him. Hartleib v. McLane, 44 Penn. St. 510.
     
      
       On a subsequent trial, the court charged that a sheriff, in respect to property in his custody, is bound to exercise that degree.of care, and no greater, which a careful, prudent man, of good sense and judgment would exercise respecting such property, if it were his own. 9 Bos. 558. And the defendant having had a verdict in his favor, this court, on appeal by the plaintiff, affirmed the judgment, holding that the rule was sufficiently stringent; and, intimating that, under the particular circumstances, ordinary care was all that was required. 27 N. Y. 234.
     