#### James Congdon *versus*John Cooper.

How fkr the seizure and possession of a part of the sheriff’s precinct, by a public enemy, will excuse him for the non-performance of the duties of his office.

[Where a deputy of the sheriff had made an attachment of certain goods of a debtor, and delivered them to bailees, taking a receipt in the usual form adopted in such cases, and afterwards that part of the precinct of the sheriff) where the goods at the time of the attachment were, and where the debtor and the deputy lived, was taken into the possession of the enemy, who kept possession thereof, and the deputy resigned his office when the enemy so took possession, no process being allowed to be served or executed in that part of the sheriff’s precinct so occupied by the enemy, but private property was not confiscated by the enemy, and the deputy demanded the goods of the bailees, who did not deliver them, and tire plaintiff" sued out execution in due time, and delivered it to the sheriff to be executed, who returned thereon that he had made search, and could not find the debtor, nor any of his goods, &c.; — held, in an action against the sheriff, wherein the plaintiff declared for the neglect of the sheriff and his deputy to keep the goods attached, so that they might be taken in execution, and for false return, that defendant was liable.]

This was an action of the case against the defendant, as sheriff of the county of *Washington.*In the first count of the declaration, the plaintiff recites that he sued out an original writ, bearing date the 16th of September, 1812, against one *Kennedy,*then an inhabitant of *Eastport,*in the said county, as was the plaintiff also ; that the said writ was, on the same day, duly served by *John Wood,*one of the defendant’s deputies, by attachment of certain merchandise ; that final judgment in that action was obtained at the June term of this Court, at *Castine,*in 1816; that the plaintiff duly sued out his execution thereon, dated the 24th of the same June, which was delivered to the defendant on the 15th of July following, to be *20served, being within thirty days after judgment; — yet the said *Cooper,*nor any of his deputies, did not safely keep the said merchandise, so attached as aforesaid on the original process, nor take the same in execution.

* The second count was like the first, except in alleging that the said *Wood*did not keep safely the goods attached, that they might be taken in execution.

The third count charged the defendant with a false return of the execution, that he could not find the said *Kennedy,*nor any of his goods.

At the trial.of the action, upon the general'issue, before the *Chief Justice,*at the last November term in this county, the facts were sufficiently proved; and in excuse the defendant showed that, on the 14th of July, 1814, the said *John Wood*resigned his commission, as one of the defendant’s deputies, in consequence of the capture of *Eastport*by the *British;*that no civil officer of this, or any other of the *United States,*had been permitted to exercise any jurisdiction, or to serve any process or precept whatever, from that time, on *Moose Island,*on which *Eastport*is situated; that, upon application to the *British*commandant, *Wood*was forbidden to serve any process, and, that no assessment of a county tax has been made upon the town of *Eastport,*nor any jurors been summoned therefrom to serve at any court, since its capture; — and the defendant relied on these facts as a legal defence.

The plaintiff then proved that *Wood*had delivered the goods so attached on his and two other original writs, being the same merchandise, on the 24th of September, 1812, to two persons, a certified copy of whose receipt to him was produced; and he proved also that, on the 20th of July, 1816, the said *Wood*made a demand of the said merchandise of one of the persons to whom it had been so delivered. It appeared that personal property was not confiscated by the enemy.

The *Chief Justice*instructed the jury that the plaintiff had made out a *prima facie*case, on which he would be entitled to recover, unless the matter offered in evidence on the part of the defendant was sufficient excuse. If he could not, by reason of the occupation of *Eastport*by the enemy, go thither and serve process there, this was sufficient for * himself; but that it might be a different case with his deputy, who lived at *Eastport,*and co'tld peaceably enjoy possession of the property attached ; and that, as he had delivered over possession to responsible persons on a contract which, after the peace and before the issuing of the execution on the plaintiff’s judgment, could have been enforced, his not producing it when the execution was delivered was a default, for *21which the defendant was liable ; and that interest should be computed on tnc judgment, from the fourth day after the delivery of the execution to the defendant.

Under this instruction, the jury found a verdict for the plaintiff oi the second count in the declaration, which was to be set aside, and a nonsuit entered, if it should be the opinion of the Court that the defendant was not liable to this action.

*Savage,*for the defendant.

The hostile seizure and occupation of *Eastport*by the public enemy amounted to a rescous of the property attached ; and had it been in the officer’s possession on execution, this would have excused him. Had *Kennedy*been arrested and given bail, the capture would have dissolved the contract ; for it would have become impossible, by the act of a public enemy, for the bail to have detained or surrendered him. So it must be as to goods attached and in the hands of the officer. The lien created by the attachment ceased on the capture, and *Kennedy,*the general owner, might have taken them from the deputy or his bailees, whose possession was that of the deputy. (1)

The lien, having been thus defeated by the capture, did not revive at the return of peace ; for *Eastport*was not restored. And when judgment was recovered, and the execution was delivered to the defendant, it was to all intents a colony of a foreign country, in which the defendant had no power to execute process of any kind.

If the deputy would have been permitted by the enemy to hold the possession, in virtue of his attachment of the property, yet, by his resignation, his right to the possession * ceased on every ground, and lie could not, with any prospect of success or any pretence of right, resist the claim of the general owner. (2)

*Leland,*for the plaintiff.

The facts do not show a rescous. Here was no force of any kind applied to the property attached. The possession of private property was in no case interrupted. The capture was a qualified one, no property, real or personal, having been confiscated or seized. The deputy might have retained the peaceable possession of the goods he had attached, and on the return of peace, although the place was not restored, he might have brought it within the jurisdiction of the sheriff, ready to satisfy the judgment, when the writ of execution should come. It was his duty to have done thus.

But if the hostile capture would have furnished an excuse in case the deputy had retained possession of the goods attached, his con*22duct has deprived him of the benefit of such an excuse. He hap before the capture delivered them over to the friends of the debtor, who converted them to their own use, as is proved by the demand and refusal found in the case. There was in this a want of the care and fidelity incumbent upon him. His duty obliged him to keep the property in his actual or constructive possession ; and if he chose rather to intrust others, he is answerable for them, precisely to the degree that he is responsible for his own official conduct. Having voluntarily put the property beyond his contiol, it is not for him now to say that his inability to produce it was chargeable to the public enemy. When an officer departs from the line of his duty, he does it at his peril ; and he shall not afterwards avail himself even of the circumstance which, but for such deviation, might have served to excuse him. (3)

(1)

12 *Mass. Rep.*131, *Baldwin*vs. *Jackson.—Ibid.*495, *Train*vs. *Wellington.*—4 *Mass. Rep.*99, *Clap*vs. *Bell.*— 13 *Mass. Rep.*394, *Bond*vs. *Fadelford.*

(2)

 2 *H Black.*111, *Alsept*vs. *Egles.*—33 *Hen*6, 1. pl. 3.

(3)

11 *Mass. Rep.*242, *Phillips & Al.*vs. *Bridge.*

Parker, C. J.,

delivered the opinion of the Court. The general principles, advanced by the counsel for the defendant in this case, are undoubtedly correct. The capture of *Eastport,*where the deputy sheriff lived, and where, according to his duty, the property attached would be presumed * to remain, would excuse him and the sheriff from producing the property, to levy the execution upon. But this is because the common consequences of capture, according to the laws of war, are supposed to *follow;*such as a restraint upon the persons of the inhabitants captured, which would prevent their removal; and upon their effects, so that they could not be withdrawn from the control of the captors. But if the capture is not attended with these effects, there is no reason why the obligation of any citizen, created before the capture, should be destroyed or impaired.

It appears, in this case, that personal property remained unaffected by the capture ; and there is no doubt that, on the return of peace, if not during the war, the deputy sheriff might have removed the goods attached beyond the lines of occupation by the enemy, where they would have safely awaited the execution. That the execution could not have been levied on the goods within the town of *East-port,*does not of itself constitute a defence ; because it was only necessary to deliver the goods to the sheriff, who might have taken them into a part of his precinct not occupied by the enemy, and have raised the money from them to satisfy the execution.

This would have been the case, had the deputy sheriff actually retained the goods in his custody upon the attachment, until the enemy seized the town. But when it is considered that he delivered them over to persons, who entered into a contract with him to *23redeliver them on demand ; and it not appearing that any thing has occurred to discharge those persons from their contract, there seems less reason for considering this a hard case upon the sheriff. He will get his indemnity from those to whom he delivered the goods, if they are responsible ; and if they are not, he will suffer only from his own carelessness, *(a)*

It is true that those who receive goods attached, to keep for the sheriff, are his servants in the eye of the law; (b) but it is equally true that in most cases they are the friends of * the debtor; and that the property, so attached and delivered, goes into his possession. The presumption arising from the common course of such business is, that the property has been enjoyed by the debtor. The contract with the sheriff, however, remains in force ; so that eventually no mischief will occur.

*Judgment on the verdict.*

(a)

*Tyler*vs. Ulmer, 12 *Mass. Rep.*163. — *Phillips*& *Al.*vs. Bridge, 11 *Mass. Rep.*242.

(b)

*Watson*vs. *Todd and*Trustee, 5 *Mass. Rep.*271. — *Perley*vs. Foster, 9 *Mass. Rep*112. — *Vinton vs.*Bradford, 13 *Mass. Rep.*114. — *Campbell*vs. *Phelps,*17 *Mass Rep.*244 — *Hawkins*vs. Kingsland, 2 Hall, *Rep.*425.