Vandalia Whig and Illinois intelligencer. [volume] (Vandalia, Ill.) 1832-183?, 1834-12-10
WALxEa AND TUDOR vs.. Fox.


Of the court, 18th Nov. 1884
Isham X. Fox sued Walker and Tu-
dor in trespass for breaking his close and
entering his dwelling, breaking open his
outer door, SC. They justified under
f. ia. in favor of Walker against Tai
ten Fox in Tudor's hands, as constable
that the slaves, goods, and chattels Of
'Tal!on Fox, were OIL the premises OF
plaintiff, and there fraudulently wilh>
held and concealed by him; Chat they
entered, finding the outer door open, to
serve the execution, &c. PlaiLt:n re.
piled that The property Of TalIon Fox
was not fraudulently held and concealed
by him on his premises, and that his
outer door was not open at the time Of
the trespass. Verdict and judgment
we're rendered in favor of Fox. to re-
verse which Walker and Tudor prose-
cute this writ Of error.
The proof was that the defendants
went upon the plantation Of the defend
AMI to levy Walkers execution upos a
negro boy Of Talton Fox's, the boy then
being on the plantation; that in The alb
sence CT the plaintiff, Tudor by the
direction Of Walker lifted the latch Of
the outer door of plaintiffs dwelling.
entered and searched his ehambers, aud
not finding the boy there, Walker broke
the locks and opened the doors of TIVE
adjacent outbuildings, but withou, find
ing the boy. The plaintiff held the
hoy under mortgage from Talton Fox,
duly recorded.
The court Instructed the jury that Tie
defendants had IA right to go on plain
tiff's premises in search Of Talton Fox
property, ifhe had any there at the time ;
but that defendants had no right to open
the outer door of plaintiffs dwelling,
vhetl.er Talton Fox's property was
there OF no. Nor had the defendants a
right to break open the door OF any out
house on plaintiffs land, unless the Jury
should find that at the time of breaking
open such clubhouse, T. Foxes proper.
ty was in the same.
And if the jury should find the de-
PENDANTS entered the plaintiff dwelling
house, not finding The outer door open,
or broke open the out houses of the
plaintiff, in which none Of II. Fox's pro.
perry was at the time, the defendants
were, by SO doing, tresspassers by rela
ton, from their original entry on the
plaintiffs land.
This instruction contains a correct
exposition of the law of the case. A
sherff cannot lawfully enter the dwell
ing of a defendant whilst the outer door
remains closed, to do execution under a
4. ia. or generally to execute civil pro.
cess in personal actions. The lifting the
latch Of the outer door to open it, is
equivalent TO breaking lock. 1t is true
this principle of exemption is confined
to the goods of the owner of the house.
or such goods of others as are Brought
there without fraud or GOWN, and does
not protect the goods of others brought
there 10 prevent execution. 1t is also
trna, that in the latter case after demand
or request to have the goods so fraudu-
lently held delivered up, and refusal,
the sheriff may break open the outer
door to do execution. But in this case
there was no proof conducting to show
that any property of Talton Fox was so
ftaudulently held by the plaintiff for the
pufP"se Of preventing execution. So
that the defendants would not have been
justified in opening the outer door ofthe
dwelling even though the slave had been
there at the time. So also though the
officer might have been justified ii
breaking the doors of the out houses
providing Talton Fox's property hao
been found there, yet he broke them a
his peril, and no such property being
found he committed trespass in so do
ing. In general an entry into the close
Of one, to sieze the person or property O
another, will not be justi6able, unless il
turns out that they were there at the
time.
Judgment affirmed with costs.
Turner, for plaintiffs; Caperton, fol-
defendants.
NDT1GTRy