The opinion of the Court was drawn up by
Rice, J.This is an action against the defendant as sheriff of Kennebec county, for default of his deputy, Elbridge Berry, for not applying on an execution in favor of the plaintiffs certain goods which Berry had attached on the original writ. The defence was, that the goods had been stolen from a safe in which Berry had deposited them, between the time of the attachment and the time when the execution was put into his hands with directions to seize and sell them on said execution. That the goods were thus lost, the evidence put into *325the case by the defendant tended to show, and also that Berry notified the plaintiffs of the loss immediately after the fact came to his knowledge. The plaintiffs charge that this was occasioned through the negligence Of Berry.
The defendant requested the Judge to instruct the jury, that, if the defendant or his deputy gave an account of the loss of the property, the burden of proof was on the plaintiffs to show that the defendant was guilty of a want of ordinary care in keeping said property. This request was refused by the Judge, who instructed the jury, that, Berry having returned the goods in controversy as attached on the original writ against Lambard, and having taken them into his custody, and not having stated in his return, on the execution against Lambard, that they were lost or taken from him without his fault, the burden of proof was on him to show that he exercised ordinary care in keeping the same, and that he must satisfy the jury that they were lost without his fault.
Our attention has not been called to any rule of law which requires that the fact of loss should be included in or made a part of the officer’s return on the execution. That, perhaps, might have been an appropriate mode of notifying the plaintiff of the loss. It certainly was not the only mode.
As to the burden of proof, in this class of cases, the authorities are not entirely accordant.
Chancellor Kent, 2 Com., 587, states the rule thus: — The bailee, when called upon for the article deposited, must deliver it, or account for his default by showing a loss of it by some violence, theft or accident. When the loss is shown, the proof of negligence or want of due care is thrown upon the bailor, and the bailee is not bound to prove affirmatively that he used reasonable care.
Judge Story, in his work on Bailments, § 454, says, — In respect to depositories for hire, there seems to be some discrepancies in the authorities whether the onus probandi of negligence lies on the plaintiff, or of exculpation on the defendant, in a suit brought for the loss. In England, the former rule is maintained. In America, an inclination of opinion *326has been expressed the other way; yet, perhaps, the weight of authority coincides with the English rule. For this, he cites numerous English and American authorities which fully sustain his assertions, and which it is unnecessary to- cite.
In Clark v. Spence, 10 Watts, 335, Rogers, J., In giving the opinion of the Court, states the rule thus: — “ The rule is that, when a loss has been proved, or when goods are injured, the law will not intend negligence. The bailee is presumed to have acted according to his trust, until the contrary is shown. But to throw the proof of negligence on the bailor, it is necessary to show, by clear and satisfactory proof, that the goods were lost, and the manner they were lost. All the bailor has to do, in the first instance, is to prove the contract and the delivery of the goods; and this throws the bur-then of proof that they were lost, and the manner they were lost, on the bailee, of which we have a right to require very plain proofs.”
This presents the rule in as favorable a light, for the bailor, as the American cases will warrant; and would seem to be a reasonable rule. It leaves the burden of showing negligence, of turning the scale, on the bailor, and still compels the defendant, with whom a knowledge of the facts and circumstances attending the loss often rests, to disclose fully all those facts and circumstances. If, when these facts and circumstances are thus disclosed, and the evidence bearing upon the question of negligence is all out, the scale is evenly balanced, the presumption that the- bailee does his duty will leave the case with him.
Tested by this rule, the instructions of the presiding Judge were not as favorable for the defendant as he had a right to demand.
The Judge also instructed the jury, that, if he failed to find property on which to levy plaintiff’s execution, it was then Berry’s duty to arrest Lambard according to the precept in his hand; and, if he did not do this, the defendant was liable for such damages as the plaintiff suffered in con*327sequence of such neglect, unless he was excused from doing so by some act or direction of the plaintiffs or their attorney.
There is no evidence that he was thus excused by the plaintiffs or their attorney.
It is provided by c. 116, of the R. S. of 1851, § 5, that no officer is required to arrest a debtor on execution, unless a written direction to do so, signed by the creditor or his attorney, is indorsed thereon, and a reasonable sum for his fees is paid or secured to him, for which he shall account to the creditor as for money collected on execution. No such direction was given.
At the time this action was tried, the above provision had recently been enacted, and had probably escaped the attention of the presiding Judge.
As to the second requested instruction, it was undoubtedly correct as a principle of law, and should have been given if there had been any facts in the case which called for it.
Exceptions sustained, verdict set aside, and new trial granted.
Tenney, G. J., and Cutting, May, Davts, and Goodenow, JJ., concurred.