The opinion of the court was delivered by
We have no occasion to decide upon the validity of the pleas seriatim in this case. If one plea is good it is sufficient, and as the fourth plea contains all which is found in
I. In regard to the fourth plea it is first objected that it should have contained an averment that the property was taken by overwhelming force as of the public enemy. But since the case of Bridges v. Perry, 14 Vt. 262, it is settled in this state that a sheriff' is not necessarily liable for the loss of the property intrusted to his custody because he’ has the posse at his command. He is bound to the utmost care and diligence of prudent men in the case of their own goods, and that seems to be sufficiently alleged under the averment that he kept the goods in this case, “ in a safe, suitable and proper place, to wit, the store of A. B. If this averment had been traversed the question whether the store was kept properly fastened would naturally have arisen. The defendant Was no more bound to allege that the doors were fastened than that the shutters'; were, but in order to prove the averments he must have proved, no doubt, that both.were, so that it seems to us the averment in regard to the mode of keeping is sufficient even if want of care would have made the officer a trespasser ab initio, which the authorities do not seem to justify; Stoughton v. Mott, 25 Vt. 668. But in some form the officer would be liable for negligent keeping of goods whereby loss accrued to the general owner.
II. In regard to the cask we think a sufficient justification for taking the contents must also include the vessel of necessity. The owner, by putting it to this prohibited purpose, must.be satisfied to have it share the fate of its contents. The statute could never have been intended to receive any other construction. The idea that an officer going to seize spirits kept for sale must go provided With casks, would certainly be attended with serious embarrassment, and is one which the statute does not seem to countenance.
III. The question in regard to the right of the justice to appoint a special officer to serve such a warrant is one of considerable practical importance. But the statute giving justices such power is very general; ch. 29, sec. 39, “ Whenever it shall be made to appear to a justice that any precept returnable to him may fail of service ” he may appoint a special officer to serve the same. There can be no doubt this is a precept of that character. And neither the provision of the act of 1852, that the warrant shall be directed
Judgment affirmed.