An execution upon a justice’s judgment against Charles Hall having been issued to one Ayers, a constable, that officer levied upon a quantity of beans in the barn of the plaintiff in error, the father of Charles Hall, which the constable had been informed and believed, were the property of the debtor, who lived with his father on the premises. As the constable was about to remove the beans from the barn, the plaintiff in error told him the beans, were his and did not belong to Charles and he bade the constable not to levy on them or remove them from the premises. The constable said he would remove them and he attempted to do so, when the plaintiff in error put his hands upon the officer and excluded him from the bam, using only so much force as was necessary to prevent him from removing the beans. Evidence tending strongly to establish the exclusive ownership and possession of the beans by the plaintiff in error, and that the execution debtor had no interest in them, was given upon the trial, and the jury would have been justified in so finding.
The counsel for the plaintiff in error requested the court to charge the jury that if they should find that the beans levied on were the property of Ransom Hall, exclusively, and that the constable was about to remove them from Ransom Hall’s premises, and beyond his control, and that Ransom Hall in resisting such removal used no other means or force than was necessary to prevent such removal, he was justified, and the jury should acquit him. The court refused such request, and the counsel for the plaintiff in error excepted.
The court charged the jury that if they should find that the constable acted in good faith in making the levy upon the beans, believing them to be the property of the execution debtor, and if they should also find that the beans were the property of Ransom Hall, and that Charles Hall had no interest in them, yet the prisoner was not justified in resisting the officer in his attempt to remove the beans, although such resistance was accompanied with no more force than was necessary to prevent such removal, and that *406they must convict the prisoner. To which charge the plaintiff in error excepted.
The prisoner was convicted and sentenced to pay a fine of twenty- , five dollars, and to be imprisoned until satisfied, not exceeding twenty-five days.
The exceptions above stated present the only question in the case. The question is whether the owner of personal property is liable to an indictment for using force to prevent an officer from levying' upon such property by virtue of an execution against another person, where the officer acts, not wantonly, carelessly, or oppressively, but in good faith, believing the property to be that of the execution debtor. We have not been able to find an adjudication upon the precise question in this State. It is well settled that the officer is liable as a wrong-doer in a civil action for making such levy (Fonda v. Van Horne, 15 Wend., 631), and it has been held that, there is a distinction in that respect between a levy under an execution and a taking of goods pursuant to a writ of replevin; the officer being directed, in the latter case, to take the particular goods described. (Foster v. Pettibone, 20 Barb., 350.) It was held in The People v. Cooper (13 Wend., 379),• that an indictment lies-against a party who, in the exercise of the right of recaption, to repossess himself of goods taken from him under an attachment against another person, commits a breach of the peace by assaulting the officer who took the goods, if the process under which the seizure was made is regular upon its face, although the magistrate who issued it had not jurisdiction of the subject-matter. Possibly, that case is distinguishable from this, by the circumstance that the officer, when he was assaulted, - had the manual possession of the property when the defendant attempted to regain it. While here, the beans, although a formal levy had been made on thejn, had not been removed, and were yet in the possession and control of the owner.
The question before us has been passed upon in some of the sister States, but the decisions are conflicting. In Commonwealth v. Kennard (8 Pick., 133), it was held that if an officer would take goods belonging to A. and in A.’s possession, upon a writ against B., A. may maintain his possession by force, in the same manner as lie might against any person who is not an officer. But in State v. *407Dovmer (8 Vt., 424), that doctrine was controverted and its opposite asserted by the Supreme Court of Yermont, in a well reasoned opinion, written by Mr. Justice Redfield. “If,” says the learned judge, “the owner of property may resist an officer in its defense, so may one who believes himself the owner; for it will not do to predicate crime upon so subtle a distinction as an abstract right of property.” He distinguishes the case from that of an illegal arrest of one person upon process against another, in which he admits that an officer attempting to make the arrest may lawfully be resisted, and says “ the case of property is very different. ■ It depends upon criteria which are not the objects of sense.” He also adverts to the consideration that it is the duty of the officer to attach property whenever requested to do so, as creating a distinction between his act and the gratuitous trespass of a stranger, without pretense of process.
Hnder our statute, the proceeding which the officer is authorized to institute, in his discretion, to try the title to the property, in case of an adverse claim, can only be resorted to after levy made (Code of Civil Proc., § 1418), and it is essential to the protection of the officer that he should have the actual possession and control of the property, after his levy, until the adverse claim is disposed, of. Resides, the remedy above referred to is available only to officers levying by virtue of process issued out of courts of record, and does not apply to a constable levying under an execution upon a justice’s judgment.
The doctrine of State v. Downer was re-affirmed by the Supreme Court of Yermont in State v. Miller (12 Vt., 437), Merritt v. Miller (13 id., 416), and State v. Buchanan (17 id., 573). It has been approved and followed by the Supreme Court of New Hampshire (State v. Fifield, 18 N. H., 34; State v. Richardson, 38 id., 208), and the Supreme Court of Ohio (Faris v. The State of Ohio, 3 Ohio St., 159; see,- also, Cokeley v. State (4 Clark [Iowa], 477.) We are referred by the counsel for the plaintiff in error to the case of State v. Johnson (12 Alabama, 840), in which the Massachusetts case above cited was followed. Rut it does not appear that the cases in conflict therewith were brought to the attention of the court. We are referred by the counsel for the plaintiff in error, to an English case,- cited in Wharton’s Ameri*408can Criminal Law (3d ed.), 554, bat we have not had access to it. The case of The People v. Wentworth (4 Scam., 550) is also cited.
The opinions above referred to seem to have exhausted the subject, and it is only necessary for us to say that we concur in the reasoning and conclusion of State v. Downer, and the other concurring cases above cited.
The conviction and judgment should be affirmed.