#### STITT v. WILSON AND OTHERS.

Fraud — officer breaking and entering a house — use of house to conceal the goods of another_ unnecessary force — trespass.

The declarations of a party at the time of a transaction, being part of the res gesta, is evidence ; but the declarations of a party, made at another time, or afterwards, are not evidence; except called for by the other party.

Fraud is not presumed in law, it is to be proved by the party setting it up.

A dwelhnghouse, used fraudulently to cover the propeity fiom execution, or vacant, is not tile protected castle of the owner.

Where it is so used, it may be broken open by an officer, without demand to have it opened_ a demand of an empty house would be vain — but if even under such circumstances the officer use unnecessary force to enter the house, from which injury results, he is liable for the injury.

Trespass, Q,. c. f. for breaking the house of the plaintiff, and carrying away goods, &c. The defendants pleaded severally not guilty. Wilson and Wisby gave notice of justification as deputy sheriffs, in entering to serve á writ of replevin. Wisby *v.*one Corben. Rallston also justified as constable, in entering to serve a writ of attachment against Corben, as an absconding debtor.

Evidence was adduced to show that Corben occupied the house of the plaintiff, as his tenant, and kept a tavern. A day or two before the entry into the house, Corben said to the plaintiff he was in debt to him for rent, which he could not pay, and before witnesses, *506he gave him up the house, and all that was in it, to pay him, except his wife’s clothes, some tools he had borrowed, and a uniform of Wisby’s. Corben then sent his wife to the plaintiff’s, and went off, as he said, to send for her in a week or two, but had never since been heard from. The house was locked up, and the keys given to the plaintiff, though the sign was still standing. The replevin was sued out for the tools and uniform by Wishy, and Wilson having demanded entrance at the house, though no body was in it,, put a boy through a broken pane of glass, who opened the doors, and they went in and replevied the goods. Wisby and Rallston were present. Rallston entered, attached the property there found, inventoried, and returned it. No evidence was offered of Corben’s indebtedness to the plaintiff, except the declaration above. The defendants urged their right to enter under the circumstances, and that the transfer of Corben to the plaintiff was fraudulent and void, and gave evidence of circumstances tending to sustain their position.

The defendants, in order to make out the fraud, asked of a witness what Corben had said about his intention to defraud creditors in the transfer to the plaintiff.

*J. Woods,*for the plaintiff, objected.

Fishbach, contra.

ili. *Marshall*and *J.*Woods, for the plaintiff, and

*Fishbach*and *R. Collins,*for the defendant,

argued to the jury.

By the Court.

The evidence is clearly inadmissible. What took place at the time, would be admitted as a part of the transaction; but what one party to a contract says at another and posterior time, with a view to avoid it, cannot avail to affect the contract, except called out by the other party.

Collett, C. J.

charged the jury, that fraud was not to be presumed, but must be proved by the party setting it up, though from its nature, it was seldom susceptible of positive proof, and is only to be made out by a detail of the circumstances. Persons about to commit fraud, do not proclaim their intention, nor call witnesses of their acts, but on the contrary endeavor to avoid exposure. As to the right of entry under the vyrit of replevin, a demand need not have been made of a party who is only constructively in possession, a possession depending on law or facts, unknown to the officer; nor need a demand be made of an empty house, as that would be vain. Where a man’s house, untenanted, is used to protect the property of another from legal process, it may be broken open by an. officer. When used for fraudulent purposes, or vacant, it is not the protected *507castle of the owner. But if the sale was fraudulent, and unnecessary force was used to get possession of the goods, the actors may be liable, on account of the unnecessary force, for the actual injury to the premises, occasioned by it.

Yerdict for the defendants. Motion for a new trial overruled, and judgment on the verdict.