Clayton’s Notebook, 45
Court of Quarter Sessions of Delaware.
May 9, 1815.
Coxe’s goods had been distrained for rent, and Fleetwood went to his house for the purpose of selling them. The goods were in Coxe’s dwelling house, and the outer door of it was shut. Fleetwood advanced towards the door, when Coxe’s wife forbade his entrance, and Coxe himself, taking up an axe and drawing it back, declared Fleetwood should not sell, and that if he attempted to do so, he would split open his head. Fleetwood burst open the door, however, and proceeded in the sale.
It was objected by the counsel for the defendant that if his act in drawing back the axe should be construed to be an assault, yet it was justifiable, inasmuch as the act was done in defense of his house against an unlawful attempt to break open the outer door in a civil case.
Clayton for the State. By Statute, 11 Geo. [II], c. 19, a distress may be impounded on any part of the premises, and in this case, the landlord having by virtue of that Statute made the house a pound, he and Fleetwood, the constable, had a right to enter for the purpose of appraising and selling the goods distrained. After a sheriff makes a peaceable levy under a fieri facias he may break open outer door’s to get at the goods for the purpose of selling them. In both cases the goods are in the custody of the law. There are many exceptions to the rule that in civil process an outer door cannot be broken open; for instance,
Page 533
the privilege of the house does not extend to the goods of a stranger.
Ridgely for defendant. Fleetwood broke open the domicile of the defendant, and he was therefore justifiable in repelling the injury. In civil cases the sheriff cannot break open an outer door to execute process. Semayne’s case, 5 Co. 92b, 1 East P.C. 321, a fortiori Fleetwood could not do it in this case, because he had not process of any kind. It was the duty of the landlord to have removed the distress, and I deny his right to make the house a pound. At most it was nothing more than a pound breach by Coxe, for which 2 Del. Laws 1148, c. 39c, s. 2, has given a specific remedy, double damages and costs of suit, and the landlord has no other remedy.
PER CURIAM.
Any attempt with force and arms to do an injury to another, where the attempt is coupled with an ability to do the injury, is an assault.
As to the notice given to Fleetwood by Coxe’s wife not to enter the house: where the husband is present, the wife has no right to forbid any one to enter the house.
It is very certain that an officer cannot justify breaking open an outer door to execute any civil process, nor can the landlord to distrain; but where an actual levy or distress has been peaceably made, we hold it equally clear that an outer door may be broken open in order to get at the goods for the purpose of selling them. An entry to sell resembles the case of breaking open an outer door to retake one who has escaped after an arrest on a capias ad respondendum, which may unquestionably be done, even on Sunday. (See a case in 1 Esp.N.P. 382 Francomb v. Pinche.)
Verdict, guilty.