to indicate the owner, and afterwards fraudulently conceals the same with a view to convert it to his own use. It is his duty to take means to find the owner and restore the property; but the law does not punish him as a thief for his failure to fulfill this obligation.

§ 22. Under the old common law, where a ship was lost at sea and the goods or cargo were thrown upon the land, the property was adjudged to the king. The law was afterwards modified under a growing sense of justice, and it was made the duty of the sheriff to seize and keep the property for a year and a day, to await the appearance of the owner. But the goods were not deemed a legal wreck unless they came to land.2 Under a statute of this state, ships and goods cast upon the land from the sea are taken care of and secured on behalf of the owner, in the name of the people. Unless the property be of a perishable nature, it is made the duty of the sheriff to keep the same for a year; and if no one appear to claim it within that time, it then becomes his duty to sell the property and pay over the proceeds into the treasury of the state, for the benefit of the parties interested. In the case of perishable property, the county judge may at once order it sold and the proceeds retained for the owner.3 Under this statute the officer is entitled to a reasonable allowance for his services as salvage, and may detain the property until the same, together with his expenses, are paid. The statute applies only where the property is thrown upon the shore; and though the officer's services are compensated under the name of salvage, they are utterly different and distinct from the services rendered in the saving of a vessel or goods from loss while at sea, either by shipwreck, fire or other distress.

§ 23. Salvage is a term of the maritime law; it is the reasonable compensation which that law gives to the salvor, to one who renders effectual services upon the high seas or on the sea-coast or anywhere within admiralty and maritime jurisdiction, in saving a ship or cargo from impending perils or in recovering them from actual loss; whether such services be rendered in recapturing the vessel, or in recovering it when found derelict at sea, or in raising it, or in taking charge of it with the assent of the master while in distress. The raising of a boat and the saving of its cargo from the river, where the tide ebbs and flows, gives a title to salvage. It is a peculiarity of this right to salvage, that it accrues only where the property is in fact saved; and the amount to be allowed is estimated with reference to the extent of the services and

1 The People v. Cogdell, 1 Hill, 94; State v. McCann, 19 Mo., 249.

2 1 Blank. Com., 290–294.

32 R. S., 960, 5th ed.; 3 Selden, 555.

Baker v. Hoag, 7 N. Y., 3 Seld., 555; 3 Kent's Com., 245.

the danger incurred, the value of the property saved and the perils from which it has been rescued. When it accrues, it attaches as a lien upon the property.2

It is a general rule founded on motives of public policy that no one on board the vessel can become a salvor or entitled to compensation in the nature of salvage; because it is the duty of all on board to stand by the ship and assist it through all perils. A partial exception to the rule is allowed in favor of the seamen; when they render valuable services in saving portions of the vessel and cargo they are entitled to wages, though not due by the terms of their contract, from the proceeds of the prop erty saved.3

§ 24. The Consideration. In every contract there must be a valid consideration on which the express or implied undertaking rests, as upon a necessary support; a naked promise being in itself simply void, nudum pactum. The general rule is that to make a contract or agreement obligatory, the consideration must be either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made; otherwise there is no agreement that can be enforced. Thus, for example, mutual promises support each other, the receipt of money for the use of another raises and supports, the promise to pay it over, and services performed render good the promise of payment therefor.

The act of entrusting a thing with another, and his undertaking the care of it, the law considers a sufficient consideration for his faithful discharge of the trust. The custody of the property is parted with on the faith of the owner in the integrity and care of the person to whom it is delivered; and though he engages to keep it gratuitously he is responsible for a faithful execution of the trust reposed in him, on the ground that his failure to keep the promise made, or the undertaking implied by law, works an injury or prejudice to the party with whom the agreement is made. The maxim cx nudo pacto non oritur actio, borrowed from the civil law, does not apply in this case; for there is an act, promise or undertaking, by each of the parties to the contract, sufficient to render it valid and binding.

§ 25. Sheriffs and Receiptors. A sheriff levying upon goods must

1 Clarke v. The Brig Dodge Healy, 4 Wash. C. C., 651; 3 Kent's Com., 245. 2 Hartford v. Jones, 1 Ld. Raym., 393; Hand v. The Elvira, Gilpin, 60. 3 Daniels v. The Atlantic M. Ins. Co., 24 N. Y., 447. Salvage is allowed and divided among the owners, officers and crew of the saving ship. 32 Barb. 556. 41 Comyn on Con., 12, 15, 16; Chitty on Contracts, 26, 27; 7 Conn. R., 57; 9 Cowen R., 778; 4 John. R., 235; 2 Black. Comm., 444, 445; Miller v. Drake, 1 Caines, 45; Powell v. Brown, 3 John. R., 100; Foster v. Fuller, 6 Mass. R., 58; Randle v. Harris, 6 Yerger R., 508; 11 Verm. R., 315.

use due diligence to keep them safely to satisfy the execution. But he is not an insurer, and is not, like a common carrier, answerable for a loss of the goods by fire, or by accidents of a similar kind. His capacity as an officer is not considered as fixing a more rigorous measure of liability upon him than if he were a private person. He is answerable as a bailee for hire; and is bound for the use of ordinary care and skill in preserving the goods which he seizes under an attachment or levies upon under an execution. The rule is the same whether he takes the goods into his own custody or delivers them into the hands of an agent or servant. And it applies equally to other officers who receive a compensation for their services.2

§ 26. Is the sheriff liable for the goods when they are stolen? It is quite clear that he is not where he holds them under mesne process, as under an attachment to await the judgment of the court, and it appears that he has taken such reasonable care of the property as a prudent man usually takes of his own.3 He is bound to shew that he has taken due care of the property such care as the nature of the goods and the circumstances reasonably call for.5 Is the sheriff liable for any greater degree of care where he levies upon goods under an execution? It has been so held, upon the theory that he ought to act with greater vigilance in the execution of final process." There does not ap

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pear to be any good reason for the distinction; the general title does not pass by a levy under an execution, any more than it does by a seizure under an attachment; in both cases the officer acts under the command of the court, and becomes liable for the safe-keeping of the property; in one case he keeps it to await the judgment and execution,

1 Browning v. Hanford, 5 Hill, 588; S. C. 7 Hill, 120; S. C. 5 Denio, 586; Moore v. Westervelt, 21 N. Y., 103; S. C. 27 N. Y., 238. The sheriff need not at once remove heavy and cumbersome articles, say 50 tons of pig iron; Scovill v. Root, 10 Allen, Mass., 414; or a load of coal in a barge; 21 N. Y., 103. 2 The rule was applied to a county treasurer in Supervisors of Albany Co. v. Dorr, 25 Wend., 440; in the case of a receiver, in Knight v. Plymouth, 3 Atk., 480; and it has been applied in the case of revenue officers and postmasters; Burke v. Trevitt, 1 Mason, 93, 101.

3 Dorman v. Kane, 5 Allen, Mass., 33; Harper v. Moffit, 11 Iowa, 527. 4 Mill v. Gilbreth, 47 Maine, 320.

Briggs v. Taylor, 35 Vt., 57, 67. Attaching grain in the straw, he is bound to thrash it when that is necessary to preserve it. He is not liable for the natural deterioration of the property-such as spirituous liquors; Robinson v. Barrows, 48 Maine, 186.

6 Hartleib v. McLane's admrs., 44 Penn. St. R., 510.

7 Green v. Burke, 23 Wend., 400, 493-502; Peck v. Tiffany, 2 N. Y., 451, 456. The lovy does not satisfy the execution. See Smith v. Orser, 42 N. Y., 132

and in the other to await the sale. The only discoverable difference between the two situations, is found in the probable length of time during which he may have to hold the goods in custody-a circumstance hardly sufficient to lay the foundation for a different rule of liability. § 27. There are some dangers, against which the sheriff is bound to guard the goods, in a special manner. He is bound to guard them against waste or removal by the defendant. He is armed with peculiar powers, and his duties are clearly defined.' He makes a levy upon them in the manner pointed out by the law; he takes them into his own custody; or failing to do so, he is liable for them to the same extent as if he had taken them into his own keeping. He is also bound to keep the property with a care and skill proportioned to its nature and circumstances. In other words, the rule must be interpreted with reference to the nature and situation of the property and the specific duties imposed upon the officer by law. On this account we find in a leading case the same charge to the jury interpreted by different judges who adopt it, as laying down a different rule of liability; at the same time both agree that the sheriff is not bound to any greater vigilance than a prudent man exercises over his own property.5

4

§ 28. After the sheriff has seized the goods under an attachment or made a levy upon them, it is not unusual for him to leave them in the custody of the defendant or deliver them to a third person and take his receipt therefor with a promise to redeliver them when called for. The officer does this upon his own responsibility; the law permits but does

1 § 215 Code, N. Y., provides how the property shall be kept in certain cases. Rodes v. Woods, 41 Barb., 471; Mickles v. Harte, 1 Denio, 548; 50 Barb., 490.

2 Glover v. Whittenhall, 1 Hill, 597.

See opinions in Browning v. Hanford, 5 Denio, 586; although the point in issue was one of evidence merely. See Jenner v. Joliffe, 6 John., 9.

4 Moore v. Westervelt, 27 N. Y., 234. The sheriff had attached a cargo of coal on board a schooner. The schooner having sunk in a storm at the wharf, the sheriff was sued for the loss; and the judge at circuit charged the jury that, "it was the duty of the sheriff to take such steps for the safety of the coal as a careful, prudent man of good sense and judgment, well acquainted with the condition of the vessel and her location with regard to exposure to storms, and having all the power of the sheriff in the matter, might reasonably have been expected to take, had the coal belonged to himself." Mr. Justice Balcom understood this as laying down the rule of ordinary diligence; Mr. Justice Davies interpreted it as laying down a more strict rule; and both agreed in holding it sufficiently favorable to the plaintiff.

5 See further, Kendall v. Morse, 43 N. H., 553; White v. Madison, 26 N. Y., 117, 126.

not expressly authorize the act; it enforces the receiptor's contract, but refuses to accept or substitute it in the place of the sheriff's liability. The party so receiving and promising to deliver the property to the sheriff, without compensation, is a mere depositary; prima facic he is only liable to the same extent as a bailee without hire.1 He is liable however according to the terms of his contract 2-to the full extent of his engagement, even where he covenants to return the property or pay the amount due on the execution.3

The receiptor, as we said, is bound by the terms of his contract. If he promise to deliver the goods to the sheriff when called for, no suit can be maintained against him until after a demand and refusal to deliver; until a demand is made no action can arise, for that is parcel of the contract.*

§ 29. The receiptor is also bound by the statement of fact contained in the receipt given by him. If that state the value or the ownership of the property, in word or by implication, he will be estopped from denying it.5 And because he is thus estopped, the sheriff is also when called upon for the proceeds of the property." This doctrine of estoppel is founded on a principle of ethics. The rule of law and the reason of it are stated thus: Where a man by his words or conduct causes another to assume or believe the existence of a certain state of facts, and induces him to act on that belief, so as to alter his previous position, the former is concluded from averring against the latter a different state of things as existing at the same time. Hence the receiptor who accepts the goods from the sheriff as the property of the defendant in the execution, promising to redeliver them, cannot afterwards set up title in himself. His contract as receiptor precludes him from making that defence. By omitting to assert his right of property at the time the levy is made, he throws the sheriff off his guard and perhaps prevents him from levying upon other property to satisfy the execution. He certainly induces that officer to change his previous position."

1 Brown v. Cook, 9 John., 361; Edson v. Weston, 7 Cowen, 278.

2 Cornell v. Dakin, 38 N. Y., 253.

3 Acker v. Burrell, 21 Wend., 605, 607; S. C., 23 Id.,

4 Brown v. Cook, 9 John. R., 361.

606.

* Dezell v. Odell, 3 Hill, 215; Penobscot Boom Co. v. Wilkins, 27 Maine, 345: Clark v. Gaylord, 24 Ct., 484; 38 N. Y., 253.

The People v. Reeder, 25 N. Y., 302.

'Pickard v. Sears, 6 Adolph. & Ellis, 469; Thompson v. Blanchard, 4 N. Y., 303, 309. It is not necessary to an equitable estoppel that the party should have designed to mislead: Manuf. & Traders Bank v. Hazard, 30 N. Y., 226, 230; Sammis v. McLaughlin, 35 N. Y., 647, 651.

8 Dezell v. Odell, 3 Hill, 216; Bursley v. Hamilton, 15 Pick., 40.