#### John H. Wentworth, v. The People.

Error to Knox.

1. Chattels — mortgagee in possession. No principle in law is better established than that a bona fide mortgagee of goods or chattels, who is in possession thereof, has a property in the same which he may defend in the same manner that he may that of which he is the absolute owner.

2. Pe.ocess — when no protection. An officer, in the execution of the process of the law, is entitled to its protection, so long as he keeps within the pale of hts authority, but no longer. The process is a sufficient warrant for tne execution of its commands, but affords no authority to go beyond, or contrary to its injunctions; and when the officer does so, he, that instant, ceases to be the minister of the law, and becomes its violator. The law does not give to his official acts sueh a sanction as to require the citizen to submit to an invasion of the latter’s rights without resistance.

3. Execution — wrongful levy, resistance.. If an officer attempt to take the property of one person, upon an execution against another, he may be forcibly resisted. He acts at his peril. The statute giving the trial of right of property has not changed the law in this respect; nor has it superseded any former mode of trying the claimant’s title to property. It is merely cumulative.

4. Same — same. A person, in the protection of his person or property, may forcibly resist an officer, unless the latter is acting under process against him.' But in such cases both parties act at their peril.

5. Same — calling assistance to levy. Semble, That an officer can call to his aid the power of the county, in executing process; and after levying an execution, he can have a controverted title tried by a jury, whose verdict will be a guide and warrant for his future action, (a)

The proceedings in the' cause in the court below were had at the No.vember term, 1842, before the Hon; Stephen A. Douglass. The facts sufficiently appear in the opinion of the court. ,

[* 551] The cause was argued at the last term, but no decision being made, a re-argument was ordered and had at this term.

Julius Manning, for the plaintiff in error:

1. If a person be forcibly attacked in his person or property, it is lawful for him to repel force by force. 3 Blac. Com. 3 ; Cro. Car. 138; Eyre v. Norsworbhy, 19*Eng. Com. Law E. 496.

And this rule applies to all cases where, if the force were unre-pelled, the action of trespass might ’be sustained for the injury. For this force is ever of the same character, and an injury to the possession. If, then, it may be repelled in one instance, it may in all. If, also, it may be repelled by the absolute owner in possession, it may be repelled by the owner of a special property sufficient to maintain trespass, when he is in possession.

2. The mortgagee of personal property in possession is protected as to his rights, as fully as the absolute owner, against' wrong doers. -Langdon v. Buel, 9 Wend. 80, 345; Halsey v. *571Christie, 21 Wend. 1; Saunders v. Yanoe, 7 Monroe 213; Snyder v. Hitt, 2 Dana 204.

And to show the high nature of the interest of a mortgagee of personal chattels in possession, I cite 9 Wend. 80 ; Brown v. Ben-net, 8 Johns. 96; Ackley v. Finch, 7 Cowen 290; Ferguson v. Lee, 9 Wend. 258.

Then if my first proposition be true, the mortgagee in possession, having the legal right to maintain trespass, could defend his possession against the force of a wrong doer.

3. Was the officer who was resisted in this case, a trespasser in the act, in the doing of which he was resisted ? Trespass lies where process has been misapplied. 1 Chit. Plead, 213; 2 Wils. 309; Elder v. Morrison, 10 Wend. 128; Aekworth v. Kemp, Dong. 40,

The sheriff levying a ji.fa. imposes on himself the necessity of proving that the party whose goods are seized was the party in the suit in which the writ issued. Reeves v. Slater, 14 Eng. Com. Law R. 91; see 2 Campbell 576; 4 Johns. 450; 5 Greenl. 291.

If process be erroneous, and the error appear on the face of the process, the officer executing it is a trespasser. Smith v. Shaw, 12 Johns. 257; 5 Wend. 180.

The interest of the mortgagor was not liable to execution. Shotwell v. Murray, 1 Johns. Ch. R. 512, or if it were, it could not be taken out of the possession of the mortgagee.

There is another remedy. 2 Johns. Ch. R. 62.

4. If the civil law will not protect the officer in this act, much less will the criminal. The moment an officer becomes a trespasser, he is no longer an officer in contemplation of the protective law; for the law will not protect a violation of itself, especially by one of its ministerial officers. The law gave [* 552] to the plaintiff here an unrestricted right to defend this property against the lawless aggressions of all wrong doers. The officer, as has been sufficiently shown, was a wrong doer, a trespasser. The law makes n'o exceptions in favor of officers violating their duties. Therefore the plaintiff is justified in doing what he has done.

An officer trespassing commits an aggravated trespass. His official duly is to execute the requirements of law strictly; and, further, to preserve that law from violation. It is the special object of his appointment. Standing in this relation to the law, he is less excusable than a common citizen in violating that law of which he is a commissioned guardian; and can by no means be exempt from the' ordinary penalties of such offences, when he commits them under abuse of process.

R. L. 191, § 92, intends not only that the process should be legal on its face, but that the officer should be lawfully executing *572it, when resisted, in order to constitute the offence therein named. If an arrest be illegal it is not within the protection of the law against obstructing process. 1 Russ, on Crimes 361; The King v. Osmer; 5 East 304.

5. It has been argued that the plaintiff’s right of resistance in this case has been taken away by the operation of the statute au-. thorizing the trial of the right of property. I answer:

First. The plaintiff in this case was not driven to his remedy of the trial of the right of property, because it is not an adequate remedy; in that he recovers no damages for injuries to, or detention of the property; and that would give no compensation for damages sustained by reason of that very force which by law he might repel.

Second. If in this case 'the plaintiff had been bound to resort to that remedy, then much more in all other cases of similar force would he be bound to submit to it, and resort to his action of trespass; for that would be a more complete remedy. But in no other case of similar force, as we have seen in the first division of this argument, is he bound to resort to his remedy of an action of trespass; therefore he is not bound to submit in this case to the injury, and take his remedy, of a trial of the right of property. In no caséis any one bound to submit to such wrongs,merely because he has a remedy. Such is not the law.

6. It has been urged that officers ought to be obeyed in the line of their duties, whether they be within the law in the particular instance or not. This would be to make the law destroy itself. Citizens have rights secured by law; among which is the right to defend their property respectively against illegal force. - The law' forbids every person to use such force against such property. Now if the law commands citizens to submit to such wrong, when committed by an officer, it wars with itself. But the law must be consistent in all its parts. Therefore the law will not [*553] command a citizen to submit to such wrong.

7.It has been argued that from policy the officer must have the authority to command, or he will alwáys be resisted and never be obeyed. He ought not to be obeyed if his command be unlawful. His authority is in the law, of which he is only the instrument; not in him, independent of the law. It would be a far more dangerous policy to require citizens to surrender their rights to the caprice of an officer. But the officer is sufficiently protected in the due discharge of his duties; farther he ought not to be.

The policy of. despotism requires submission to the requirements of its officers, for the will of one is law, which may be unknown until it is required to be executed;’ but the policy of freedom is that its officers shall be obeyed so far only as they *573command what is lawful; for the law is certain and known to all, and an equal shield to all against wrongs and violence.

8. This point, contested, in this case, has, in effect, been decided in Elder v. Morrison, 10 Wend. 128, and directly decided in The Commonwealth v. Kennard, 8 Pick. 133.

J. A. McDougall, attorney-general, for the defendants in error.

(a)

For statute providing for trial of. right of property levied on under process-from court of record. See L. 1875, p. 69; S. & Co’s Stats. Judgments etc., ch. 77. ¶ 67, p.1413; Cothran’s Stats. (1885), p. 1514.

WilsON, Chief Justice,

delivered the opinion of the court: The record shows the facts of this case to be that the defendant below was indicted for resisting Obadiah Jackson, a constable, in attempting to levy a writ of attachment against the goods and chattels of Henry Herriford, and after the introduction of the evidence on the part of the prosecution, the defendant proposed to prove that the goods and chattels attempted to be levied on were in lxis possession, and that he had used only so much resistance as was absolutely necessary to prevent the officer from taking them out of his possession; and also to prove his title to the property by offering in evidence a deed of mortgage of the said property to him by the said Herriford. To the introduction of the mortgage for the purpose aforesaid the prosecuting attorney objected, and the court sustained the objection. To this opinion of the court the defendant excepted, and hot assigns it for error. That the court erred in refusing to allow the mortgage to be read in evidence for the purpose of proving the defendant's title to the property is a proposition too clear to require the support of argument or a reference to authoritj’. No principle is more conclusively established than that a bona fide mortgagee of chattels, who is in possession thereof, has a property in the same, which the law allows him to defend in the same manner that he may that of which he is the absolute owner. And no objection being made to the form or validity of the mortgage, it must be regarded as having vested in the defendant, who was the [*554] mortgagee, an interest which, for the purpose purposed, was as effectual-as an absolute title.

The question then arises, whether the defendant was warranted in using such force as was necessary to retain possession of his property against the attempted seizure of the officer, by virtue of the attachment against the goods of Herriford. This point, I conceive, is also well settled. The position that policy requires that an officer clothed with the authority of the law should be protected in the discharge of his duty is admitted to the fullest extent; but it does not follow from this admission that the constable was justified in seizing the goods of the defendant upon an attachment against those of Herriford. An officer in the execution of the process of the law is entitled to its protection so long as he keeps himself within the pale of his authority, but no longer. The process is a sufficient warrant for the exe*574cution of its commands, but affords no authority to go beyond or contrary to its injunctions; and when tlie officer does so, lie that instant ceases to. be the minister of the law, and becomes its violator. What then was the authority conferred by the writ under which the officer professed to act in this case ? Certainly not to take the goods of the defendant, but those of Herriford. He had no better right, therefore, to take the goods of the defendant, by virtue of a writ commanding him to take the goods of Herriford, than he would have had to do so without a process against any one.

If the act of the constable was in violation of law, was not the defendant justified in resisting him ? Although the policy of the law affords ample protection to its officers while in the discharge of their official duties, yet it does not clothe them with a mantle of immunity against a violation of its precepts or the rights of the citizen, nor does it give to his acts such a sanction as to require the citizen to submit to an invasion of the latter’s rights without resistance. It seems to be conceded that if an officer, by virtue of a process against one person, offers to take into custody another, he may be resisted, and that the officer alone will be responsible for the consequences. Upon this principle, then, the resistance of the defendant was justifiable, for the law equally allows the protection of one’s property and person from illegal aggression.

From the principles thus stated it results that, in a case like the present, each party acts at his peril, and he only is amenable to the law who it can be shown has violated it. If the officer acts in violation of the command of his writ, by attempting to seize the person or property of one notliabjeto be taken by it, he becomes the wrongdoer, and may be resisted; but if it turns out that the per'son or property was subject to its operation, then those who resist its execution are guilty of an infraction of the law and subject to its punishment. This reciprocal obligation to look to, and abide by the consequences of their conduct, is just and [*555] equal, and whatever hardship or inconvenience this may impose upon the officer is a consequence incident to the nature of his office ; but there is little necessity for him either to incur responsibility, or allow the mandates of the law to be put at defiance, for he is not required to levy a writ against the property of one man, upon that of another; and when his opinion as to the ownership of property in possession of, or claimed by another, is well grounded, he may call to his aid the power of the county in executing his process; and after levy, he can have a controverted title tried by a jury, whose verdict will be a guide and warrant for his future action ; while on the other hand, to deny to the citizen the authority to assert his undoubted rights, but require bim quietly to submit to their invasion, under color of process, at *575the mere caprice of every one clothed with a little brief authority, would be to convert the law, which he should be able to look to fo\' protection against wrong, into a scourge and an instrument of oppression. It will not do to say that the individual should appeal to the law in every case, and submit to a trial of the right of property. This would unquestionably be prudent in doubtful cases, but in many it would be a very inadequate remedy, and in some a mere mockery of justice; Suppose an officer should, out of pure wantonness, seize the horse of a traveler upon the highway, under the authority of a writ against the property of another, or even without any writ, for his authority for the act would be the same in either case. Can it be contended that the owner of the horse would have no right to repel this aggression on his property ? Surely not.

This is one of the many cases of a like, or even more aggravated invasion of an individual’s rights that may be instanced.

But it is said that admitting the law to have been as stated,*yet that the statute providing for the trial of the right of property levied on has changed it so as to do away with the right of resistance to an illegal seizure of property; but I cannot suppose the legislature either has rendered, or intended to render less secure the tenure by which the citizen holds his property. That statute, without encroaching upon any of his former rights, was intended to add to them, by giving a cheaper and speedier method of asserting them, and also to afford security to the officers of the law in the discharge of their duties. No former mode of trying the respective claimants’ title to property is superseded by this statute. It is to be regarded as merely cumulative, and any other construction would defeat its object. The judgment of the court below is reversed, and the cause remanded to be tried according to the decision of this court.

Lockwood and Treat, Justices, dissented.

Judgment reversed.