Jones v. McGuirk

Citations

• 51 Ill. 382

Syllabus

<p>1. Peactice—objection for want of proof—when to be taken. In an action against an officer to recover for damage to property while in his custody and by reason of his neglect, he can not object for the first time in the appellate court that there was no proof of his official character at the time. The objection should first be made in the court below, so as to give an opportunity to obviate it by proof.</p> <p>2. United States Maeshal—his duty and liability in respect to property in his custody. When a United States Marshal takes property into hiscustody under a process in rem issued out of an admiralty court, he becomes thenceforth chargeable with its safe keeping; it is his duty to use due diligence to keep the property safely, and he will be liable to the owner for any damage to the property resulting from a want of such diligence.</p> <p>3. So where a marshal seized and took into his custody, under such a process, a steam tug, which he put in charge of a custodian, and while so situated the tug sprung a leak and sunk, for want of proper care and attention on the part of the custodian, it was held that the marshal was liable to the owner for the damage occasioned thereby.</p> <p>4. The property being thus in the custody of the marshal, the owner is relieved of all concern about it, and is not required to be present to protect it. The sole responsibility of its safe-keeping is upon the officer.</p> <p>5. Dtje diligence—in such case. Due diligence is understood to be such as a careful, prudent man, of reasonable sense and judgment, might reasonably be expected to take if the property belonged to himself.</p> <p>6. In such a case as this, the officer should know whether the vessel leaked; whether the place she occupied was a proper one; whether, in the removal of pipes, which were taken out by direction of the custodian, any holes had been left through which water might enter the vessel; what bad effect ice might have upon her which might be avoided, it being in t