The opinion of the court was delivered by
Redfield, J.We think the testimony offered by the defendants was properly rejected by the county court. It is well settled that one may defend the possession of his property against a stranger with such force as may be necessary. But this right cannot be extended to the case of an officer whose duty it is to attach property whenever he is requested so to do. He may or may not require indemnity for the act. But it would be too much to say that he must decide all cases of doubtful property at his own hazard, or that if he attempted to make an attachment when the property was not in fact in the debtor, he might by the owner of the property be resisted to any extremity. The rule would be the same when he called out the posse comitatus, and the question whether the officers of justice, or the rioters, shall be held liable to indictment, must depend upon the decision of some abstract question of property, which the sagacity of no man was sufficient to foresee. And if the owner of property may resist an officer in its defence, 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. It must be something more tangible.
We believe the better and safer and only practicable rule to be, that whenever the question of property is so far doubtful that the creditor and officer may be supposed to act in good faith in making the attachment, the owner of the property even cannot justify resistance, but must yield the possession and resort to his remedy by *429action. This is the only mode in which the question could be tried. And unless such a rule be adopted, no human sagacity is adequate to the decision of those nice questions which the duty of sheriffs and their officers involve.
The rule here established does not impugn that which is found in the books, “that an illegal arrest may be resisted.” If the process is void, or is misapplied, it is the same as if there were no process, so far as one’s person is concerned. But the case of property is very different. It depends upon criteria, which are not the objects of sense.
It is well settled that if an officer have probable cause to suspect one of felony, he may proceed to arrest him by any force necessary, and is justified, notwithstanding the person shall prove to have been innocent. — 2 Hale, 79 — 1 East. 301 — Samuel vs. Paine, Douglass 357. — 1 Russell on C. 504.
The question of the sufficiency of the indictment is all that remains. If either count in the indictment be good, the motion in arrest cannot prevail. The second count in the indictment, which goes upon the statute, is manifestly defective. The process should have been so far set forth, that the court could see that it was legal, and that the officer had authority to serve it. All the authorities, too, cocur in requiring that the bill should contain an allegation of the particular mode of resisting the officer. And no doubt the mode in which the process was attempted to be executed, should be specifically set forth. And it should be alleged that the respondents knew of the character in which the officer claimed to act,—
For all these reasons, the second count in the bill is bad.
The first count is for an assault upon the officer in the execution of his office. This does not conclude against the statute, and is strictly for an aggravated assault at common law. And it is too well settled to be discussed, that an assault and resisting one in the execution of any authority or power, is indictable at common law, and all the precedents of indictments for such offence are like the present. We think this count good as for an offence at common law. And as the statute has only superadded the higher penalty for the offence, this does not take away the right to proceed against the offender for the offence, as at common law, which can only be punished with fine and imprisonment in the common jail. — Doug. 445 — 2 Ch. C. L. 70 — 1 Russell, 48 — 2 Hawkins, 625, §4.' • — 1 Saund. R. 135, a (4) — King vs. Dickinson, 2 Salk. 46.
This count is in strict conformity with the precedents found in *430¡¡la English books. — 2 Chit, 596, and cases cited. — Archbald s and Ev. 302.
The judgment of this court is, that respondents take nothing by their motion or exceptions, and judgment was rendered against the respondents.