State v. Richardson
38 N.H. 208
N.H.
1859
Check Treatment
Fowler, J.

In State v. Fijield, decided in this county by the Superior Court, December term, 1845, the report of which is not yet printed, the precise question raised in the present ease was considered and settled. The respondent there was indicted for obstructing a deputy-sheriff in the removal of certain personal property which he had attached as belonging to one Page, on a writ against him, and which was lying at a 'mill occupied by Page. The respondent offered to show in evidence upon the trial, that the property attached was_Jhis own, having been previously assigned to him by Page; and that he used no more force than was necessary to retain the property in his own possession, and prevent the officer from taking it away. The court being of opinion that, if shown, these facts would constitute no defencé, rejected the testimony offered, and a verdict of guilty having been rendered, the case was transferred on exceptions to this ruling and to the form and allegations of .the indictment.

After disposing of The objections taken to the indictment, by overruling them, Woods, J., in delivering the *210opinion of the court, says: “ The last exception to be considered is that which was taken to the exclusion of the evidence offered by the defendant, to prove that the goods were his own, and not the goods of Page, against whom the process was, and whose property it required the officer to take.

“ The good faith and lawful purpose of the officer, in seizing the goods in controversy, are implied in the verdict, which establishes the fact that he was resisted in the service of the process; so that the question presented is, whether an officer, who, in the service of a process against one, and intending to serve it, attempts to take property which belongs to another, may lawfully be resisted by the latter with such force as shall suffice to enable him to retain possession of his own.”

After adverting to the conflicting decisions of the Supreme Courts of Massachusetts and Vermont on this question, as found in the cases of Commonwealth v. Kennard, 8 Pick. 133, and State v. Downer, 8 Vt. 424, analyzing the reasoning of the two tribunals, and illustrating at some length the correctness of the principle maintained in State v. Downer, the learned judge proceeds :

“ The obvious tendency of the doctrine for which the defendant contends, (that asserted by the Supreme Court of Massachusetts, in Commonwealth v. Kennard,) to promote disturbances of the peace by emboldening parties, otherwise sufficiently disposed to be strenuous in cases of doubt, and to appreciate in such cases the benefits of actual possession and present use of the disputed goods, suffices of itself to awaken the greatest doubt of its soundness.

^ “It is true that the owner of goods, in possession of them, may in general resist a trespass designed to take them from '/his possession. It is also true, that the seizure of the (goods of one person, upon process against another, is \technically a trespass, for which the law has provided the *211same remedy as for the wanton aggression of a stranger, without color or excuse. But it does not necessarily follow that the two acts may not be distinguished in the particulars under consideration. For one, preventive force is often the only protection ; for the other, the law has provided remedies so perfect as to take away all excuse and all strong necessity or reasonable temptation for the exertion of such force.

“ Indeed, in every aspect in which we have been able to consider the question, we are unable to find those reasons for doubting, which the conflict of high authorities might induce us to expect, and are decidedly of opinion that the defence which the defendant offered was rightly rejected at the time, and that there must be judgment on the verdict.”

The doctrine of State v. Downer, which was thus approved and confirmed by our own court, has been reaffirmed by the Supreme Court of Vermont, in State v. Muller, 12 Vt. 437; in Merritt v. Miller, 13 Vt. 416, and in State v. Buchanan, 17 Vt. 573; and commends itself to our judgment as the only sound and reasonable rule of law in the premises. To hold that an officer, duly qualified, and known to be so, may be resisted with impunity, while proceeding in good faith to attach property which he is directed to attach and indemnified for attaching as the property of the defendant in the process he is executing, by any person claiming to own that property, would impose upon every officer the necessity of investigating and † deciding correctly at his peril every controversy in relation ■ to the ownership of property shown to him as belonging to the debtor, before he could safely act. It is unnecessary to say how utterly impracticable and impossible this would he. No man who regarded his personal safety or pecu-l niary interests would venture to attach personal property 1 the title of which was in controversy, if such a rule were \ established and generally understood and practiced upon *212by the community. Besides, there is no occasion for such a rule. If the property of one person is taken upon a j writ or execution against another, the law affords ample / means of redress by a writ of replevin, añ injunction, or / other proceedings, without the owner’s taking the law into 'i his own hands. There is no such sacredness attached to I personal property as can justify, in its defence, resistance \ to an authorized officer of the law, acting in good faith, (under lawful process.

As the question before us was distinctly settled in State v. Fifield, in accordance with our convictions of what the true rule of law should be on this subject, the exceptions taken to the ruling of the court below, in precise conformity with that decision, must be overruled, and there must be judgment against the defendant upon the verdict.

Judgment on the verdict.