ing a person from church.73 But if unnecessary force is used, it is an assault and battery.74

If a person has entered by force, no request to leave is necessary before ejecting him,75 but it is otherwise if the entry was peaceable.76

§ 438. Recovery of possession. By the weight of authority, if a person is in peaceable possession of another's real property, though his possession may be wrongful, the owner may not resort to violence in order to regain possession, but must resort to the machinery of the law.77 It has been held, however, that where a lease gives the lessor a right of re-entry on condition broken, he may use such

force as is reasonably necessary to make such an entry, and will not be guilty of assault and battery in so doing.78

Generally a person may use so much force as is reasonably necessary to retake personal property wrongfully taken from him by another or withheld from him without authority,79 especially where it is taken in his presence and by force,80 or fraud.81 And this right of recaption, when it exists, is not limited to the immediate time and place of the taking, and is not lost because the property is temporarily taken out of the owner's sight, provided the pursuit is immediate.82 It has been held, however, that a mortgagee of chattels has no right to take them from the mortgagor by force on a claim of default, where there is a dispute as to his right to possession.83 Generally a person is not warranted in using a deadly weapon to regain property taken from him.84 And in all cases the person entitled to possession is guilty of an assault and battery if he uses unnecessary force.85

78 Goshen v. People, 22 Colo. 270, 44 Pac. 503.

79 Bonner v. State, 97 Ala. 47, 12 So. 408; State v. Scott, 142 N. C. 582, 55 S. E. 69, 9 L. R. A. (N. S.) 1148.

Where the vendee of a business obtains possession of the bill of sale by expressing a desire to see it, and refuses to give it up, although he is not entitled to it until he has made certain payments. Com. v. Lynn, 123 Mass. 218.

The owner of leased premises or his agent may use such force as is reasonably necessary to retake fixtures wrongfully removed by the tenant after his lease has expired. Elliot, 11 N. H. 540.

State v.

A mortgage giving the mortgagee power to take possession of the mortgaged chattels with the consent of the mortgagor was held not to be a defense to an assault committed by the mortgagee in attempting to take possession by force and without the mortgagor's consent. Culver v. State, 42 Tex. Cr. 645, 62 S. W. 922.

80 Com. v. Donahue, 148 Mass. 529, 20 N. E. 171, 2 L. R. A. 623, 12 Am.

§ 439. As against officers of the law. A person may lawfully resist an entry upon his premises by an officer who attempts to enter without authority of law.86 And he may resist an entry into his dwelling house by officers who come to arrest him, or eject officers who have entered for that purpose, where he does not know and is not informed that they are officers, but supposes that they are mere intruders.87

Some courts hold that an officer who attempts to levy on property under a void writ of execution or attachment is a trespasser, and that the owner of the property may use such force as is reasonably necessary to retain possession of it, the same as against any other trespasser.88 And the same rule has been applied where an officer attempts to levy on property of a person other than the execution or attachment defendant, under a writ which does not specify the particular property to be seized.89 Other courts have held that the owner of property has no right to resist an officer who attempts to attach it upon process against a third person having no attachable interest in the same and is guilty of assault and battery if he does so,90 or if he recaptures the property by force after it has been taken by the officer under the writ.91

The owner is not justified in using such force as will amount to a breach of the peace. Kunkle v. State, 32 Ind. 220.

86 Com. v. Wright, 158 Mass. 149, 33 N. E. 82, 19 L. R. A. 206, 35 Am. St. Rep. 475.

As where an officer attempts to enter without authority in order to obtain evidence of a violation of the Sunday laws. Com. v. Eyre, 1 Serg. & R. (Pa.) 347. Or where a city officer attempts to enter for the purpose of inspecting and measuring cordwood under authority of an ordinance which has been superseded by a state law giving no such right of entry. Com. v. Gillam, 8 Serg. & R. (Pa.) 50.

87 State v. Cessna, 170 Iowa 726, 153 N. W. 194, Ann. Cas. 1917 D 289. 88 Lassiter v. State, 73 Tex. Cr. 35, 163 S. W. 710.

89 Smith v. State, 105 Ala. 136, 17

So. 107; State v. Johnson, 12 Ala. 840; Wentworth v. People, 4 Scam. (Ill.) 550; Com. v. Kennard, 8 Pick. (Mass.) 133.

Where the particular property is specified, no one can actively interpose to obstruct the execution of the process. Smith v. State, 105 Ala. 136, 17 So. 107.

90 State v. Richardson, 38 N. H. 208, 75 Am. Dec. 173; State v. Buchanan, 17 Vt. 573; State v. Downer, 8 Vt. 424, 30 Am. Dec. 482.

Where the question of property is so far doubtful that the creditor and officer may be supposed to act, and do in fact act, in good faith, and on reasonable grounds for believing the property to be that of the debtor, the owner has no right to resist the execution or attachment by a breach of the peace. Faris v. State, 3 Ohio St. 159. 91 State v. Buchanan, 17 Vt. 573.

Some courts hold that if an officer attempts to levy on exempt property, after being warned that it is exempt, the owner may use such force as is reasonably necessary to prevent the levy,92 while others hold that he has no right to resist the levy by force, but must seek his remedy in the courts.98 And it has been held that the officer is not a trespasser where he does not know that the property is exempt.94

It has been held that one is not guilty of assault in resisting a levy by an officer who unlawfully breaks or opens the door of his house in order to make the levy,95 or by a person who is not a legally appointed officer,96 or in resisting a search of his home by an officer acting without authority to make the search.97 But an assault upon an officer attempting to serve a writ of possession, valid on its face, is not justified by nonjurisdictional defects in the judgment on which the writ is based, where no violence has been used by the officer against the person of the defendant.98

§ 440. Abusive, threatening or insulting language or gestures. Threatening, insulting or abusive language, or insulting looks or

92 State v. Johnson, 12 Ala. 840. See also Smith v. State, 105 Ala. 136, 17 So. 107.

93 State v. Cokely, 4 Iowa 477. 94 State v. Morgan, 3 Ired. (25 N. C.) 186, 38 Am. Dec. 714.

95 People v. Hubbard, 24 Wend. (N. Y.) 369, 35 Am. Dec. 628.

96 State v. Briggs, 3 Ired. (25 N. C.) 357.

97 An officer who, without legal authority, attempts to search a person's home for whisky, is a trespasser, and the owner is entitled to employ sufficient resistance to prevent the search, short of committing a homicide. Hence he is not guilty of an assault with a deadly weapon where he prevents the search by pointing a gun at the officer. People v. Ross, 19 Cal. App. 469, 126 Pac. 375.

98 The defendant is not justified in shooting the officer under such circumstances. People v. Mines, 164 Ill. App. 658.

99 Alabama. Keiser v. State, 71 Ala. 481, 46 Am. Rep. 342.

Arkansas. Howard v. State, 122 Ark. 422, 183 S. W. 743; Price v. State, 114 Ark. 398, 170 S. W. 235; Wheatley v. State, 93 Ark. 409, 125 S. W. 414; Scott v. State, 75 Ark. 142, 86 S. W. 1004; Vance v. State, 70 Ark. 272, 68 S. W. 37; State v. Herrington, 21 Ark. 195.

California. People v. Wright, 45 Cal. 260.

Delaware. State v. Roe, 7 Boyce (30 Del.) 95, 103 Atl. 16; State v. Brooks, 3 Boyce (26 Del.) 203, 84 Atl. 225.

Illinois. Crosby v. People, 137 Ill. 325, 27 N. E. 49; Steffy v. People, 130 Ill. 98, 22 N. E. 861.

Indiana. Rauck v. State, 110 Ind. 384, 11 N. E. 450.

Iowa. State v. Cokely, 4 Iowa 477.

Kentucky. Arnett v. Com., 137 Ky. 270, 125 S. W. 700.

gestures,1 will not of themselves justify or excuse an assault and battery in return, except where the statute so provides. In some jurisdictions, however, insulting or abusive or opprobrious language may be considered in mitigation of the punishment, and it is sometimes provided by statute that it may amount to a justification if the jury shall so determine. Threats of personal violence are not necessarily opprobrious or abusive within the meaning of such a provision.1 Nor are lawful questions in good faith propounded to a witness by a