Opinion
Fall Sessions, 1840.
Rodney, for plaintiff.
Rogers, Jr. and Booth, for defendants.
This was an action of trespass vi et armis, for entering plaintiff's house and taking his goods. The defendant, Vandyke, was an officer and Records the plaintiff in an execution against Boggs, and they justified under this process.
Replication to the plea of justification "excess and abuse of the authority under which defendants justify."
It appeared that the officer had entered the house without permission, the outer door being shut; and had seized the plaintiff's goods and taken them away; and it was insisted that this was sufficient to support the action. ( Semayn's case, 1 Smith's leading cases 39.)
For the defendants it was urged that there could be no abuse of process unless there was excess of the authority given by the process. If the officer do nothing but what his writ allows, he cannot be guilty of an abuse of process. Vandyke was authorized and required by his writ to seize all of Boggs' goods, even the bed; and he was justified, after stating his authority, to break the house. He was at least authorized to lift the latch of the door, which is all that was done in this case.
But the Court charged that an officer has no right to open an outer door if it be closed, for the purpose of levying an execution; if the door be open he may go in and make his seizure; if the door be closed and the officer raps at the door and receives permission from the persons within to enter, or if the door be opened to him he may enter; but without such permission he cannot enter, and his doing so would make him a trespasser ab initio. As the pleadings stand in this case the issue is upon the fact whether the plaintiff's door was opened by the officer, there being no rejoinder of a license or authority from any one within to enter. (See Prcttyman vs. Dean et al., 2 Harr. Rep. 494, and State vs. Coxe, Ibid 495 note.)
An officer is not bound to leave goods with a defendant; he may take them away. Yet he might be guilty of an excess by taking entirely too much, as a thousand dollars worth of property to satisfy a demand of a hundred dollars; or by taking improper articles, as the apparel from a man's person, c.
The plaintiff had a verdict for nominal damages.