dissenting: The plaintiffs took out claim and delivery, claiming to be owners of a chattel mortgage on an automobile. The defendant executed a replevy bond denying the right of plaintiffs to recover possession of the ear, which, while acting in his official capacity as sheriff of Rockingham County, he had seized while it was being used for transporting, in violation of law, forty gallons of whiskey, and for the further reason that one of the occupants of said car at said time had been tried and convicted for the unlawful transportation of whiskey and the other was unidentified and had escaped. Pending the trial of the plaintiffs’ claim, the automobile in question, which was stored in a local garage, was accidentally destroyed by fire along with the garage and other cars therein, and there was no evidence that there was any negligence on the part of the sheriff or the garage.
The defendant sheriff had seized the car and held the same pending the time when he should ascertain who the man was who made his escape at the time of the seizure or until its title was decided by the court, as the law of this State directed he should do.
The car was destroyed by fire, a circumstance beyond the control of the sheriff, and admitted in the “facts agreed,” due to no fault of his. He was not the owner of the car, and in giving the forthcoming-bond, as required by the writ served on him, he did not set up ownership. This had passed "to the State of North Carolina upon the conviction of the occupant for transporting whiskey, subject only to any interest of a third party.
This is not a case where the possession of the defendant was wrongful ah initio, for it was the duty of the defendant sheriff, acting under mandate of law, to retain possession of the automobile, first, for use as evidence in the trial of the criminal action against the man who *737escaped, and second, to be turned over to the State under the judgment of the court confiscating the car to the State, if it should so order.
The case was submitted upon an agreed state of facts which is silent as to whether C. Yance Smith, the owner of the car, had guilty knowledge of the use to which the car was being put. There wás no serious contention that he did not have this guilty knowledge, and the case turns solely upon the rights of the mortgagee, the motor company. It was the duty of the defendant sheriff to retain possession of this car, for in case the mortgagees sustained their claim, then the excess in value over, and above the mortgage would belong to the State. The defendant sheriff was not the owner of the property in question nor did he claim to be. He was holding t'he car as the law commanded him to do, to be turned over upon the final determination of the criminal action to the owners — the mortgagee or the State — as the judgment of the court might determine. This case is therefore entirely different in principle from Randolph v. McGowans, 174 N. C., 203, relied upon by the plaintiffs, which was an action between individuals over a cow, no official duty being imposed upon the defendant.
It would be “hard lines” upon the sheriffs of the State, when honestly and faithfully endeavoring to execute the mandate of the people of the Hnited States in the Eighteenth Amendment and the mandate of the ballot box in their own State, to suppress the liquor traffic, to hold that they must surrender possession of an automobile captured when filled with forty gallons of whiskey, when-some distant company shall present to him a claim to possession as mortgagee, when he has no opportunity to examine the correctness of their claim, the registration and bona fides of the mortgage, and when the 'statute requires that he should hold the machine subject to the future order of the court until it shall be determined who is the owner thereof.
Ye have had no such ease as this. On the contrary, even when a defendant was holding the machine in his individual capacity, and purely as bailee, this Court has held in Beck v. Wilkins, 179 N. C., 231, that even where the defendant owner of a garage has received an automobile for repair he is regarded as a bailee and is “not liable for its destruction by fire if he observed ordinary care for its safe-keeping,” which could only be determined by the verdict of a jury. This case is printed as a leading case in 9 A. L. R., 554, and is' sustained by an overwhelming majority of decisions occupying 18 pages of notes, and the annotations on page 570 state that it is also supported by the cases in this Court of Lyman v. R. R., 132 N. C., 721, and Hanes v. Shapiro, 168 N. C., 24. In the latter case Walker, J., in a very learned opinion (page 28) says: “The fights and liabilities of the parties to a bailment, as we shall see, depend primarily upon which one is to receive the *738benefits of the transaction. The law justly imposes a stricter liability upon the one who is to receive the whole benefit of the bailment than upon one who entered' into it solely out of good will and for the accommodation of the other party.”
In this case., the sheriff had no interest whatever in the automobile, which was taken in strict accord with the authority conferred by the statute and in the line of his duty, and it was held by him according to the provisions of the statute until the criihinal action should be disposed of and the ownership of the machine decided.
Under the Federal statute, a machine, horses or other property seized while being used in the illicit manufacture or transportation of liquor is confiscated to the Government- — not only the interest of the party using it but the interest of the mortgagee and of the owner claiming to have rented it to the violator of law. The Court in this State has not sustained that doctrine, and it is common knowledge that the liquor traffic has been much aided by fictitious mortgages and alleged ownership of such property in other persons than those directly engaged in violating the law. Under these circumstances the officer of the law was justified in holding the property until, in the manner directed by the statute, its ownership should be determined.
Certainly the officer, who received no benefit from holding the machine and was simply endeavoring to discharge his duty under the statute, and who admittedly was guilty of no negligence in housing the machine, should not be made responsible when, under our own decisions above cited, he would not be liable even if he had been the holder of the machine for repairs in a garage, unless proven to be negligent. Beck v. Wilkins, supra.
There is no statute nor indication of a statute in North Carolina holding a faithful, conscientious officer, who discharges his duty in taking over an automobile while in use for the illicit transportation of liquor, an insurer while holding it in compliance with the statute, when it has been accidentally destroyed without fault or negligence on his part. There is no statute making him liable as insurer under these circumstances. The Court has never so held heretofore in any decision, and should not now by judicial decree place such liability on its own accord upon the sheriffs of the State. To create such' new liability by judicial decree will sorely increase the difficulty of enforcing the law against the manufacture and transportation of intoxicating liquor.