dissenting: I think the case at bar distinguishable' from Randolph v. McGowans, 174 N. C., 206. In the instant case the suit is brought, not against A. P. Sands as an individual, but as sheriff of Rockingham County. It was the duty of this official, under the law, to seize any vehicle used in conveying liquor.
C. S., 3403, is as follows: “If any person, firm or corporation shall have or keep in possession any spirituous, vinous or malt liquors in violation of law, the sheriff or other officer of any county, city or town, who shall seize such liquors by any authority provided by law, is hereby *735authorized and required to seize and take into his custody any vessel, boat, cart, carriage, automobile and all horses and other animals or things used in conveying, concealing or removing such spirituous, vinous or malt liquors, and safely keep the same until the guilt or innocence of the defendant has been determined upon his trial for the violation'of any such law making it unlawful to so keep in possession any spirituous, vinous or malt liquors; and upon conviction of the violation of the law the defendant shall forfeit and lose all right, title and interest in and to the property so seized; and it shall be the duty of the sheriff having in possession the vessel, boat, cart, carriage, automobile and all horses and other animals or things so used in conveying, concealing or removing such spirituous, vinous or malt liquors, to advertise, and sell same under the laws governing the sale of personal property under execution.”
Under the above law the defendant, under his oath of office, was in duty bound to safely keep the vehicle “until the guilt or innocence' of the defendant has heen determined, upon his trial.” When the vehicle was seized, two men were in the car, with forty gallons of whiskey. The vehicle was seized on the public highway of Rockingham County. One of the men was tried and convicted; the other made his escape. The car was being held pending the capture of the unknown man. The plaintiff took out claim and delivery, alleging it had a mortgage on the car. The suit was against the defendant as sheriff, and, as such, he gave replevy bond and stored the car in a garage — a modern, up-to-date storage room — and it was accidentally burned pending the trial of the issue.
The case of South Ga. Motor Co. v. Jackson, 184 N. C., 328, is distinguishable from the present case. That case decides:
“0. S., 3403, creating a forfeiture of an automobile used in the unlawful transportation of intoxicating liquors, and providing for its sale, etc., by its express terms relates only to the interest therein of the violator of the law upon his conviction, and cannot be extended by legal construction to include the interest of a mortgagee of the automobile who is entirely ignorant and innocent of the unlawful act of which the defendant has been convicted; nor will the failure of registration of the mortgage affect the matter, under our registration laws enacted'for the protection of creditors and purchasers for a valuable consideration,” etc.
The sheriff, as an officer of the law, gave the bond to hold the car as evidence, under the statute. He used every care and caution, and it was burned in the garage. Un'der the statute then in existence he acted in good faith, and his conduct should not be “weighed in gold scales.” Under the statute now in force, provision is made for cases of this kind. Public Laws 1923, eh. 1, see. 6. When the vehicle is seized, as in the present case, “such officer shall at once proceed against the person *736arrested under the provisions of this act in any court having competent jurisdiction; but the said vehicle or conveyance shall be returned to the owner upon execution by him of a g*ood and valid bond, with sufficient sureties, in a sum double the value of the property, which said bond shall be approved by said officer, and shall he conditioned to return said property to the custody of said officer on the day of trial to abide the judgment of the court.”
Officers of the law must obey the law. With the mandate of the statute positively requiring the sheriff to keep the vehicle “until the guilt or innocence of the defendant has been determined,” he performed his duty and replevied the vehicle.
I- cannot, under the facts in this case, see how an officer should suffer for doing his duty.