I concur that the conviction and sentence be sustained. It is not stated in the bill of exceptions, that, at the time of the levy by the officer,.the defendant was in the actual possession of the property ; nor does it appear that at the time the officer made the attempt to remove the same he had not secured full possession of the property. The defendant gave his consent that the officer might enter upon the premises, and levy on any property belonging to Charles Hall, the defendant named ,in the execution. He had effected a complete levy upon the property and had commenced a removal of the same before the defendant attempted to interfere. The title to the property was in dispute, the constable claiming -that it was the *140property'of the defendant named in the precept, who is a son of the defendant here and resided with him on the premises. It is impossible for the court to say, from the facts stated in the bill of exceptions, that the prisoner was at the time of the levy in the actual possession of the property to the exclusion of Charles Hall. In the request to charge, as made by the defendant, and which was rejected, the court was asked to direct an acquittal of the defendant if the jury should find that he was the sole and exclusive owner of the property. In the charge as made, the jury were instructed, that if they found that the defendant acted m good faith, and believed the prop..erty to be that of Charles Hall, and they, in fact, found that it was the property of the defendant, then he was not justified in resisting the officer in his attempt to remove the property. In neither of these propositions was the question of actual possession by the defendant embraced, and each was based upon the fact of ownership; consequently it was not error to reject the first and affirm the second. As to the legal proposition stated in the opinion of Mr. Justice Smith, founded on the cases which are cited therein, that the lawful owner of personal property in the actual possession of the same, cannot lawfully defend such possession by the use of so much force as is necessary for that purpose, as against an officer who attempts to levy upon and remove the same by virtue of process against another who has ho right or interest in the property, I do not concur. I place my dissent upon the common law rule as the same is stated and followed in the decisions of the courts of this and other States, and is, as I understand the cases, that the owner of personal property in the actual possession of the same, may defend his possession, as against an officer who seeks to seize and remove the same by virtue of legal process in his hands commanding him, in general terms, to levy upon the property named in the writ of another, using no more force than is necessary. I refer in particular to Elder v. Morrison, 10 Wend. 128; Commonwealth v. Kennard, 8 Pick. 133; People v. Wentworth, 4 Scammon (Ill.) 550 ; State v. Johnson, 12 Ala. 140 ; Storey v. Robinson, 6 T. R. 138; Am. Crim. Law, § 1290; Buck v. Colbath, 3 Wall. 334; Curtis v. Hubbard, 4 Pill, 437; Id., 1 Hill, 336 ; People v. Hubbard, 24 Wend. 369.
Hardin, J., concurs in result.Judgment and conviction affirmed.,