Sawyer v. Town of Middletown , 10 Vt. 237 ( 1838 )

The opinion of the Court was delivered by

Collamer, J.

If the course taken by the constable was the only legal course, which could by him have been taken, then he should by law be indemnified and protected, and should be permitted to retain money for that purpose, and the plaintiff cannot recover. If he has neglected his duty, and thereby cost has been occasioned him, he must bear it.

In the case of State v. Downer & Fuller, 8 Vt. R. 424, it was holden that a citizen could not lawfully resist an officer, in the attachment of property, though he owned the property and the precept was against another mem. This law cannot, however, apply to an officer who has. legally taken property on attachment. If he has taken the property on execution or final process, he must be responsible for the safe keeping of it, except against the act of God and the public enemies; for he has the posse comitatus at his command, on such process. In relation to. mesne process, he may excuse himself by a private irresistable rescue. This must be such physical force as, by him, is irresistable, and of this he must make due return. This principle in the law clearly shows that, in relation .to an officer who holds property, by him legally attached, it is his privilege and his, duty to resist, even with force, any other officer in taking the property from him. To hold otherwise, would create the very difficulty and mischief,the decision of the case of State v. Dower & Fuller, was intended to prevent, that is, violence to executive officers.

In this case, the constable was bound safely to keep the property by him attached, and it does not appear, that any force, irresistable by him, was used in taking the property from him. The constable having the right, and it being his duty, to keep the property, even by force, he cannot neglect this duty, and thereby incur expense, and then call for indemnity and remuneration therefor.

Judgment affirmed.