pupperty thereunder by Mrs. La Mothe would be a justification for resistance to or obstruction of officer by the defendant McDonald, if he committed any acts of resistance or obstruction.

On the other hand, if you find from the evidence that the mortgage in question was not made in good faith, or that the defendant Mrs. La Mothe did not in good faith take and was not at the time alleged holding such possession of the property as I have defined, by virtue of the mortgage, and if you further find that the defendants did on the day stated, knowingly and willfully obstruct or resist or oppose the service or the attempt to serve or execute the writ of attachment, then your verdict should be in favor of the United States. Further, if you find from the evidence that the mortgage in question was in good faith made as claimed by the defendants, and that the defendant Mrs. La Mothe did in good faith take and at the time alleged hold possession of the property under the mortgage, and if you further find that the marshal and his deputies acted in good faith in their proceedings under the writ of attachment, and with reasonable grounds for believing that the property was in fact owned by the defendant McDonald, and if you further find that the defendants did on the day stated, as charged, knowingly and willfully obstruct, or resist or oppose, the service or attempt to serve or to execute the writ of attachment, then your verdict should be for the United States.

The indictment in this case is against three defendants, and charges the commission by them of the same offense. They are indicted together for one offense. To convict all of them it is therefore essential that it should be shown that the offense committed, if any offense is proven, wholly arose from the joint act of all. All of the defendants can not be convicted unless each and all of them were parties to the commission of one and the same offense. An indictment in the form of this, is not sustained by proof merely that each of the defendants has separately committed at different times a separate and distinct offense of the kind charged here, with which the other defendants were not connected, and in which they did not participate, and which did not spring from the joint act of all. So, if you are satisfied from the evidence, applying it to the legal principles I have stated, that the offense charged was committed, and that it arose wholly from the joint act of all of the defendants, then your verdict may be guilty as to all, otherwise not. If you find that the offense charged was committed by any two of the defendants, and that it arose wholly from the joint act of such two defendants, and that the other defendant is not guilty, then your verdict may be guilty as to the two defendants, and not guilty as to the other. So, if you should find one of the defendants guilty of the offense

charged, and that two of the defendants are not guilty, you may convict the one and acquit the other.

If you should find that each of the defendants did commit the offense of obstructing or resisting the officer, but that the offense so committed by each defendant was complete in and of itself, and was entirely separate and distinct from that committed by any other defendant, neither defendant in the commission of his or her offense having any connection with the offense of any other defendant, so that each complete offense was wholly independent of, and disconnected from, each other offense, then there could be no conviction of any of the defendants. So, if you should find that any two of the defendants committed the offense charged, such offense arising from the joint act of the two defendants, and if you should also find that the other defendant also committed the offense of obstructing of resisting the officer, but that the offense committed by the two defendants was wholly separate and distinct from that committed by the one defendant, the two defendants having no connection with the offense committed by the one defendant, and the one defendant having no connection with the offense committed jointly by the two defendants, then there could be no conviction. For, as before indicated, it is the law, that, when two or more persons are indicted together for an offense of this character and for one and the same offense, proof of entirely separate, distinct, unconnected offenses committed by each will not sustain a conviction.

Verdict for defendants.

RESISTING OFFICER-RESCUING GOODS FROM CONSTABLE WITHOUT ASSAULT NOT A CRIME.

STATE V. SOTHERLIN.

[Harp. 414.]

In the Constitutional Court of South Carolina, 1824.

An Indictment will not Lie for rescuing goods, taken in execution, out of the possession of a constable, there being no assault on the constable.

The defendant was indicted for assaulting John Spriggs, and taking out of his custody a cow and calf, which, as one of the constables of Greenville district, he had taken in execution. The taking was not denied, but there was no proof of any personal violence to the prosecutor, Spriggs, and the only question in the case was, whether an indictment would lie for thus rescuing goods taken in execution.

The presiding judge, entertaining doubts on this question, directed the jury to find the defendant guilty, for the purpose of bringing it up for the consideration of this court; and the same question was now made the ground of a motion for a new trial.

The opinion of the court was delivered by Mr. Justice JOHNSON.

In the consideration of this case, it will not be controverted that an indictment will lie for an assault committed on a ministerial officer, in the discharge of the duties of his office. The only thing to be determined is the abstract proposition, whether an indictment will or will not lie for rescuing goods taken in execution by the proper officer under legal process.

The general rule which it is supposed embraces this question, is that the obstruction of the execution of lawful process is an offense against public justice of a very high and presumptuous nature, and as such, is punishable by indictment.1

This principle includes a numerous class of cases, amongst which the most prominent, and those by which its application to the present cases are best illustrated, are those of rescuing goods restrained for rent and pound breach.2 The reason why this mode of proceeding was allowed in these cases obviously is, that before the statute, II. William and Mary,3 the party injured could not maintain an action against the wrong-doer, nor could he proceed in the collection of his rent without the possession of his goods; and thus a proceeding authorized by law was wholly frustrated; and it appears to me that the principle rests solely on the foundation that the act done was of such a nature as arrested justice in its progress, short of the end in view — the determination of the rights of the parties.

If we extend this principle beyond its legitimate bounds, we shall encounter one of equal authority and still more universal in its application. The proceeding by indictment was only constructed for the purpose of punishing public offenses, and never can be applied to the redress of private injuries; and it will only be necessary further to inquire whether the act complained of in this prosecution belongs to the first or last of these.

If a sheriff take goods in execution, they are, eo instanti, vested in him, and he may maintain trespass in trover for them; and he is liable to the party at whose suit they are taken for their value; the party injured has an action against the wrong-doer.

4

The only conclusion which can be drawn from this authority is, that when the execution has been levied it is functus officio. It has placed in the hands of the sheriff and invested him with a property in the

14 Bla. Com. 128.

2 Bacon Aqr. Tit. Rescue A.

3 ch. 5.

4 Bacon's Abr. Tit. Rescue A.

goods, and has answered all the purposes for which it was intended. A trespass committed upon it was, therefore, a private injury, and consequently an indictment will not lie.

A strong, if not conclusive argument in favor of this view may, I think, be drawn from the fact, that none of the books contain a precedent of an indictment for rescuing goods taken in execution. It will scarcely be insisted that if the common law authorized this mode of proceeding, it would have slumbered for so many ages.

The cases referred to and those to be found in the books, generally relate to the sheriff exclusively; but they apply with equal force to a constable when acting within his legitimate sphere. Motion granted. COLCOCK, GANTT, and HUGER, Justices, concurred.

RESISTING OFFICER-OFFICER MUST HAVE AUTHORITY.
UNITED STATES v. COOK.

[1 Sprague, 213.]

In the United States District Court, Massachusetts, October, 1853.

1. If Dutiable Goods are Wrecked, and strewn upon the shore, by force of the winds and waves, they are liable to duties only upon their value, as they lie upon the shore. If worthless in that condition, they are subject to no duty.

2. To Justify an Officer in making a seizure of goods as forfeited, there must be reasonable ground to believe that some offense has been committed.

3. To Subject a Person to an Indictment, under the statute of 1799,1 for carrying away goods, alleged to be under seizure, a seizure must have been lawfully made, and possession taken and continued by the officer; and the accused must have carried the goods away forcibly, knowing them to be under seizure.

This was an indictment containing four counts, fouuded on the United States Statute, March 2, 1799.2 The defendants were charged with "forcibly resisting, preventing and impeding" custom-house officers and their assistants in the execution of their duty. The different counts alleged that Edwin Young, deputy-collector of Scituate, Tilden Hall, deputy-collector of Marshfield, and one William Young, their assistant, were resisted, prevented and impeded in the execution of their duty. It appeared from the evidence that in March, 1853, the ship Forest Queen was wrecked on Scituate beach, with a foreign cargo, composed, among other articles, of rags in bales. The rags were strewn along the beach for miles, and being mixed with wool and

2 ch. 22, sec. 71; 1 U. S. Stats. at Large,

rock-weed and other substances, and saturated with linseed oil, were of no value in that state. Many tons were picked up by various persons of Scituate, and being separated, with much labor, from foreign substances, and dried in the fields, were put up into bundles for sale. Messrs. R. & R. Cook, two of the defendants, purchased large quantities of these rags from many persons, it being understood from Mr. W. P. Allen, the then deputy-collector at Scituate, that no duties were to be demanded for them.

Shortly after this, Allen was removed from office, and Edwin Young was appointed in his place, who demanded duties on a parcel of rags belonging to the defendants, and on others stored in their loft. This demand was refused, and the rags, shortly afterwards, and in the daytime, were put on board the schooner Taglioni, a packet plying between Scituate and Boston. There they were seen by Young; and Hall testified that Young seized them, but told nobody of the seizure. The rags were afterwards, and in the absence of Hall and Young, taken from the packet; to this, on their return, they made no objection, and in their presence the rags were put into wagons and carried away by the defendants. The two deputy collectors told nobody that the rags were seized, and Young made no objection to their being carried away. Hall testified that he forbade their putting the rags into the wagons, but his evidence was not supported.

SPRAGUE, J., in the course of his charge, laid down the law substantially as follows. To charge the defendants, the government must make out:

1. That the officers were obstructed in the lawful discharge of their duty.

2. That this was done by the defendants forcibly.

3. That the acts of force were done knowingly and intentionally. In order to justify the United States officers in seizing goods, probable cause must be shown for seizure. They must have reasonable cause to believe that some violation of the revenue acts has taken place. Salvage goods are liable to duty, if of any value. The rags in question were liable to duty on the beach, if of value, but otherwise if worthless. The duties, in such case, are to be assessed upon their value as they lay on the beach, and not on the enhanced value given by subsequent labor. If these rags were worthless on the beach, and Young knew it, and knew that they were not liable to duty, then there was no probable cause of seizure. And further, in order to maintain this indictment, the Government must prove an actual seizure of the rags by Young or Hall, and that the defendants knew of this seizure. They must also prove that the officer took the goods into his custody, and continued to hold them until forcibly ousted by the defendants.