Wentworth v. People

Citations

• 5 Scam. 550

Syllabus

<p>Error to Knox.</p> <p>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.</p> <p>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.</p> <p>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 The statute giving the trial of right of property has not changed the law in this respect; nor has it superseded any former mode of trying the claimant’s title to property.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.</p> <p>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.</p> <p>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) </p>