#### *Reuel Hampton *against*Jacob Swisher, constable.

ON CERTIORARI.

THIS was an action on the case for *Trover and Conversion,*for goods which the plaintiff had taken in execution, and delivered to the defendant for safe keeping. At the trial, *Hampton*required proof that *Swisher*was a constable, and he produced a certificate in these words. “ This may 1 -.o certify that *Jacob Swisher*was duly elected constable for the township of *Knowlton,*in the county of *Sussex,*and state of *New-Jersey,*in the year 1816. Given under my hand, this *May*9, 1817. *Barnabas Swayze,*town elk.”

*(a)***Certificate oonstable.

Ba^6^a71f?r 0l' goods, ^kon W car'' stable m execution; and £yPro" bailee.

The justice in his transcript, states, “The defendant offered to prove, that *D. M. M’ Gregor,*had conveyed his right of property away, before the constable had levied his execution to one *M’Lean.*The defendant offered to prove that the property was his, before the constable levied on it, but he, the said defendant, did not know it, at the time the property was put into his hands, for safe keeping. All the above motions I overruled, because it appeared to me to have been a contract between the defendant and other persons, and not between the parties at issue.” There was verdict and judgment for plaintiff for 38 dollars, 31 cents.

Reasons for reversal :

1. Admission of certificate.

2. Overruling proper evidence.

P. *D. Vroom*for plaintiff.

(a)

 Not necessary to produce certificate. *Stout vs. Hopping, 1 Hal. 125. Conover vs. Solomon, Spen. 295. State, Reeves vs. Ferguson, 2 Vr. 107. Gratz vs. Wilson, 1 Hal. 419. Inhabitants,*&c., *vs. Smith, 4 Har. 52. Hoagland vs. Culvert, Spen. 387. Brewster vs. Vail, Spen. 56.*See *Bordine vs. Service, 1 Har. 41. Lee vs. Evaul, Coxe 283. State vs. Cake, 4 Zab. 516.*

The Chief Justice delivered the opinion of the court.

Kirkpatrick C. J.

This was an action on the case, for *trover and conversion. Swisher,*the plaintiff, therein sets forth in his state of demand, that a certain execution issued by *Isaac Read,*esq. one of the justices of the peace *74for the county of *Sussex,*in an action wherein *John May-*was plaintiff, and *D. M. M’ Gregor*defendant, for 91 dollars, 89 cents of debt, and 53 cents costs, was put into his hands, as one of the constables of the township of *Knowlton,*in the said county of *Sussex,*to be executed; that he seized upon and took into his possession, certain articles of the goods and chatties of the said *M’Gregor,*in the said state of demand, particularly mentioned and specified *and deposited them in the house of the defendant, *Hampton,*by and with his consent and permission, for safe keeping, until he should call for them.

Upon the trial, the defendant objected against the plaintiff’s going into any evidence, until he had first proved that he had been a constable on the 13th of *February*1817, when the said execution came into his hands.

The plaintiff attempted to do this, by offering a certificate of one *Barnabas Swayze,*setting forth that the said plaintiff had been elected a constable for the township of *Knowlton,*in the year 1816, and signed by the said *Swayze,*as town-clerk.

*(a)***This certificate was improperly received in evidence, on many accounts, but the defendant can take no advantage of this here. It was not necessary for the plaintiff, to prove himself to have been a constable. The defendant had, as was alleged, and in this stage of the business, is to be taken for granted, received the goods from him as constable, and merely for safe keeping, and he cannot now gainsay his authority, and withhold them for his own benefit.

The defendant having failed in this captious objection (for the justice admitted the certificate as complete proof of the plaintiff’s having been a constable) then offered to prove that *M’Gregor*had conveyed his right in these, goods, before the plaintiff had levied his execution, to one *M’Lean,*and that they had' become his, viz. *Hampton’s,*property before the said levy, and before they were put into his hands by the plaintiff for safe keeping, though he did not know at that time, that they had so became his.

All this was overruled by the justice, and rightly so, *75though, perhaps the reason rendered for so doing, may not be sound. Having received the goods for safe ing only, and that under a promise to deliver them when called for, he cannot be permitted now to set up property in himself, derived from a third person.

The cause then went to the jury, and they found for the plaintiff, the sum of 38 dollars, 31 cents, for which judgment was entered.

It is therefore the opinion of the court, that the judgment must be affirmed.

(a)

*Hoppock vs. Wilson, post 150.*

Sottthabd J.

dissented, and delivered the following opinion.

*The plaintiff claims a reversal of the judgment, upon several grounds. I shall examine the case, in reference to only one of them.

The plaintiff below, in his demand, alleges, that he had in his possession, certain specified goods, by virtue of an execution, against *D. M. M’Gregor ;*that he delivered them for safe keeping to the defendant, to be returned when called for; but that defendant refused to deliver them, when demanded ; and that therefore he brought his action for the *trover and conversion.*

After the plaintiff had rested, at the trial, the defendant, among other things “ offered to prove, that the property was his, before the constable levied on it, but he, the said defendant, did not know it at the time the property was put into his hands for safe keeping.”

This evidence, which we are to presume the defendant could have given, the justice overruled ; and in so doing, I think he committed an error. The rights of *Swisher*in this case, can be no greater than those of any other bailor, when he demands from his bailee, a deposit for safe keeping. His character of constable, and his claim under the execution, invests him with no greater privileges, than if he claimed it as his own personal property; and the propriety of the opinion of the justice, depends upon the question, whether a bailee for safe keeping, may not refuse to deliver up a deposit which is his own, and was his own, when it was left in his custody. I think he may. That such bailee may not defend himself, by *76denying the right of the bailor, as a public officer, or by the property in some third person, may be true. The law implies a promise in him, to deliver it up, when demanded ; and he must not place himself in the stead of some third person, and assume or defend his rights. He must comply with the legal obligations which are upon him, and leave the maintenance of their own rights to others. But this does not prevent him from setting up, by way of defence, a property in the goods deposited. Though not an ordinary occurrence, yet it may so happen, that a depositary may be the owner, and yet, at the time the deposit is made, not be aware of the fact: and I can see nothing to prevent him, at any future period, from maintaining his ownership. There is no principle or reason, to compel a bailee of his own goods, to return them. The bailor can have no right to them, or property in them. His being a public officer, *with process against a third party, can surely give him none, over the bailee’s goods. The implied obligation of the bailment, can never divest the property out of the one, and invest it in the other. The only possible effect, which could result from enforcing this general, implied obligation, against this right of property, would be to make the owner deliver up his goods to another, in order that he might immediately bring a suit to recover them back. This is never necessary. What ever would be sufficient and competent to maintain an action against a man for goods, isa sufficient defence against him, when he claims those goods. That proof, which would enable a man to recover property from a public officer, wdio had taken it by virtue of process; would also enable the same man, to resist the attempt of that officer, to get the property from him. Now, proof of complete ownership would surely do this: and such proof ought, in the instance under consideration, to have been admitted. If *Hampton*had a right to these goods, Nim/ier had no claim to them ; he was a trespasser for having taken them into his possession, no matter what process he had against *M’Ch'egor.*By overruling this testimony, that great principle of the law, that where a. man comes into the peaceable possession of his property, he has a right to *77retain it, has been violated; and the extraordinary spectacle, has been exhibited; of an owner, in the quiet session of his goods, obliged to deliver them to a man, who has not the shadow of title to them.

In my opinion, the judgment ought to be reversed.

Judgment affirmed.