COMMONWEALTH v. ALCOTT KENNARD et al.

INDICTMENT against Kennard and two others. The first count is for a common assault and battery upon one Smith. The second count alleges, that on October 2, 1826, by virtue of a writ of attachment, James Dennie, a deputy sheriff, attached certain goods and placed them in the custody of Smith, and Smith being lawfully in possession of them under the authority of the deputy sheriff, the defendants on the same day assaulted and beat Smith, and with force and a strong hand deprived him of the custody and possession of the goods.

Kennard, as to whatever is against the peace, pleads not guilty; and as to the residue of the offence charged, he pleads, that Brodhead, one of the defendants, and one Coolidge, be fore and at the time when the offence is supposed to have been committed, were possessed of a certain shop, and of certain goods, being the same goods mentioned in the indictment, which were the proper goods of Brodhead and Coolidge, and being so possessed thereof, Smith, on, &c. was unlawfully in the shop, against the will of Brodhead and Coolidge, and with a strong hand kept them out of possession of the shop and of the goods, and that Brodhead requested him to depart from the shop and to give up the goods to Brodhead and Coolidge, which he refused to do; whereupon Brodhead requested Kennard to aid him in the defence of the possession of the shop and goods, and thereupon in defence of the shop and goods, they gently laid their hands upon Smith and removed him from the shop and from the goods.

Replication, de injuria sua, &c.

Verdict, guilty in manner, &c. and of his own wrong, and without any such cause, &c.

At the trial, before the chief justice, it appeared, that Dennie, on the 2d of October, 1826, having a writ of attachment in favor of Lambert & Patterson against one Motley, went with Lambert, soon after sunset, to the shop which had been

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occupied by Motley, and there found goods which he attached. Dennie left Smith in the shop, directing him to keep possession by virtue of the attachment. In the course of the evening Smith was put out of the shop by force, by direction of Brodhead, Kennard assisting by Brodhead's request. No more force was used than was necessary to put Smith out of possession, and no unnecessary harm was done to him, though he was, probably without design, slightly hurt in the arm.

Kennard offered to prove, that previously to the attachment, Motley had assigned the goods, for the benefit of his creditors, to Coolidge and Brodhead, and that they immediately took possession of the goods, and appointed an agent to take charge of them; that this agent was in the shop, claiming to hold the goods in behalf of his principals, during the whole time that Smith was there; and that he informed Dennie, at the time of the attachment, that the property belonged to Coolidge and Brodhead. The execution and validity of the assignment were admitted.

Evidence of these facts was rejected, on the ground that they did not constitute a justification; and the verdict was thereupon taken by consent, subject to the opinion of the whole Court.

Rand and H. H. Fuller, on the point that where an officer misapplies his precept, he is a trespasser, cited 1 Chit. Pl. 170, 129, 185; Bell v. Oakley, 2 Maule & Selw. 259; Money v. Leach, 1 W. Bl. (2d ed.) 555, and 563, note; S. C. 3 Burr. 1742; Sanderson v. Baker, 2 W. Bl. 832; S. C. 3 Wils. 309; Morgans v. Bridges, 1 Barn. & Ald. 647; Impey's Sheriff, 437, 438; Ackworth v. Kemp, 1 Doug. 40. On the point that a person, being the owner and in possession of goods, has a right to use force in order to keep possession, 1 Chit. Pl. 492; Weaver v. Bush, 8 T. R. 78; 1 East's P. C. 406, c. 8, § 1. And on the point, that an officer exceeding his authority is situated like any other wrong-doer, 1 Russell on Crimes, 722, 732, 743, 520, 522, 523; The King v. Osmer, 5 East, 304.

J. T. Austin, for the Commonwealth, admitted that where an officer wantonly abuses a legal process, he may be resisted, but where, acting in good faith, he merely misapplies it, the case is different. Here there was no impropriety in the conduct of the officer. It was his duty to make the attachment.

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A creditor may require the officer to attach any property which he shall point out to the officer, and if the officer is in doubt whether it belongs to the debtor, he may require an indemnity from the creditor. Marshall v. Hosmer, 4 Mass. R. 63; Bond v. Ward, 7 Mass. R. 123. The creditor may indemnify him against pecuniary loss, but he cannot against a personal injury; it follows, that the owner of the goods has no right to use violence against the officer. It is said that the party claiming to own the goods, has not a perfect remedy, if he is put to an action; but this is contrary to the theory of the law. The government has undertaken to secure the public by requiring the sheriff to give bonds. The doctrine of trespass, as generally applied in the case of an officer, is a fiction of law, for the purpose of trying the question of title.

PARKER C. J. delivered the opinion of the Court.

The validity of the assignment of the goods which had been taken by the officer, over which Smith, the prosecutor, was placed as keeper, being admitted, and the assignees being in actual possession, having a servant in the shop, with the care of the goods, when the officer entered, this becomes a common case of an attachment of the goods of A on a writ against B; so that the officer, in making such an attachment, would undoubtedly be a trespasser.

The question then is reduced to this; whether the owner of goods which are in his actual possession, may not lawfully defend his possession of them against a seizure or an attachment by an officer, who comes to take them on a precept against another person, who has no right or interest in the goods.

Certainly the officer in such case would be a trespasser, for he does not act under any precept against such owners, nor is he commanded to take their goods. Actions of trespass against officers thus transgressing are among the most common actions in our courts, and they depend upon the same principle as actions of assault and battery, or false imprisonment, by one who is arrested on a writ or warrant against another person. In such case there is no authority for the arrest, and the person making it, whether by mistake or design, is a mere trespasser. And the same facts which would sustain an action of trespass

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by the person arrested, will justify any resistance which may be necessary to defend his personal liberty, short of injurious violence to the officer.

We cannot distinguish between an officer who assumes to act under a void precept, and a stranger who should do the same act without any precept; for a command to arrest the person or seize the goods of B, is no authority against the person or goods of A. And an officer without a precept is no officer in the particular case in which he so undertakes to act. The officer must judge at his peril in regard to the person against whom he is commanded to act. This is said to be hard, but it is a hardship resulting from the voluntary assumption of a hazardous office, and considering that in all cases of doubt the officer may require indemnity before he executes his precept, the hardship is imaginary. Marshall v. Hosmer, 4 Mass. R. 63; Bond v. Ward, 7 Mass. R. 123.

It is said that the owner of goods seized or attached on a precept against another, has legal remedies by action of replevin, trover, or trespass, and therefore ought not to be allowed to protect his goods with a strong hand, for this power may be abused so as to cover the property of the debtor, and so the creditor may be disabled from obtaining satisfaction. Such a mischief may happen; but it is not a fair argument against the existence of a right, that it may be abused. If the right did not exist, great abuses might come from the power in officers to take any person's property upon suspicion or suggestion that it belongs to the debtor, and the owner might be driven to a replevin, in which he must give bond with surety, or to his action for damages, in which the expense may consume the value of the property.

But it is again said, that the rule sought to be established by the defence, will deprive creditors of the power of trying the question of property, in cases where there may be grounds to believe that it is covered by the person in possession claiming to be the owner. But the creditor is not without a legal remedy. He may have an action on the case for interrupting unlawfully his attachment. The officer may have an action of trespass, if the goods are taken out of his possession. And the trustee process will compel the possessor to make full disclosure of his right to hold. And besides all this the party is

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liable to indictment, and if he fails in making out his right strictly, will incur a severe penalty.

It will be recollected, that this is a criminal prosecution against persons who were in actual possession of the goods, being the acknowledged owners, or their servants to whose care they were committed; that they did nothing more than defend, with no more than necessary force, their possession. This decision, therefore, will form no precedent for cases which may be differently circumstanced. Money v. Leach, 1 W. Bl. 555; Ackworth v. Kemp, 1 Doug. 40; Sanderson v. Baker, 2 W. Bl. 832.

We have had no authorities cited on the part of the Commonwealth, which have any tendency to show that the owner and possessor of goods may not defend them against an officer who comes to seize them as another person's. That a man may defend his person, his lands, or goods, against the intrusion or invasion of those who have no lawful authority over them, would seem entirely unquestionable. If the officer believes the possession is only colorable, and the claim of property fraudulent, if backed by the creditor's orders, or secured by bond of indemnity, he will take care to be so attended as to be protected against insult in the execution of his precept.

There are cases which show that if an officer, having a precept against a person privileged from arrest, shall arrest him, he will not be a trespasser. But in such case he is commanded to arrest the particular person, and is supposed to know nothing of the privilege; the party therefore shall be held to apply for his discharge to the court having jurisdiction of the matter.