| Ala. | Jan 15, 1848
The delivery of a writ of attachment, or fieri facias to an officer, is a command to levy it on the property of the defendant; if he levies it on the property of a stranger, he is a trespasser. We do not think there is in law, or in reason, any substantial distinction, between the levy of an execution on the property of a stranger, or the levy upon articles exempt by law from levy and sale, after the sheriff has béen warned of the fact, that they are exempt. Our first impression was, that there was a distinction, from the fact, that these exempt articles were always in the possession of the defendant, and that the sheriff had no means of knowing, whether the property was entitled to exemption, or not. But it was the intention of the legislature, that these articles of prime necessity for the comfort of the family, should be kept inviolate for its use, and it would in a great measure defeat the object of the law, if the defendant was required to submit to such a levy, and seek redress against the officer by action.
The apalogy pressed on the court, by the attorney-general, of a writ commanding the sheriff to arrest one privileged from arrest, when it is held the sheriff must notwithstanding make the arrest, and that although the privilege is claimed, is more specious than solid. The writ in such a case is specific; it directs on whom it shall be executed, and the officer has no power to disobey its mandate. When the writ is general, as when a fi. fa. is issued, the command is [no further specific, than it limits the taking
It is a settled principle nf our law, that every one has the right to defend his person, and property, against unlawful violence, and may employ as much force as is necessary to prevent its invasion. [Ackworth v. Kemp, 1 Douglass, 40; Commonwealth v. Kennard, 8 Pick. 133.] If however the defendant employed more force than was necessary to prevent the seizure of the property, he became a trespasser.
It is also very clear, that the defendant can only be held responsible, if guilty, upon one of these indictments. The decisive test, is, that the same testimony will support both charges.
Judgment reversed and remanded.