Arrest On Mesne Process.
The Times, 1824-01-13T00:00:00

Sir- I rYi11d o7aseinwhilitil'qesionha arse t, whethei -dweilng boiiie & arrest a person, (not the owiner) who shetters him- self.therein to elude the'law, at the suit of an individual on mesne process ; and theretbre a point may arise, namelv, whether a man 'who leaves his ordinary reidence to elude the la%i and takces lodg- ings or sheIter in anoflher's house, can be protected by the lavw as a lodger. 'l'here are several cases where indisputably sn officer mnay break open outer doors : for instance in the cases (amongst otheri) ofa warrant granted by a justice of the peace to compel a person to find suretiea, contempts, proceedings of outh'swry, of treason and fe- lony, or'where a person, being lawfully arrested, afterwards escapes and flies ta his own or another's house, and in cases where the! King is the prosecutor, the officer first ma'king known the cause. As it mnay niot be uninteresting to the public to be made acquainted with the pcdwer of the sheriff in the exe-cution of civil process, if you think the following worthy a place in your paper, b~ its insertion it may be the means ofthrowing a further light upon t is subject by the re- search of others who have more time and ability to attend to it. Lord Coke in his reports, part ii, b. 9-2, s. 1, says, " The house of every, one is to him his castle and fortress as well for defence against injury and violence as for his repose." Again, ini 3 Inst. cap. 73., a man's house is his castle, and bis liouse in whichi is his surest refuge;- for where shall a man bel safe, if itbe not in his house ? and in thi's sense it is truly said that the law permits him to take up arms against the armned. fIn p. 320, Poster's Reprs itssid amn's house' is his castle, for safety and repose to hiimself and famnily; but this rule is confined to the breach of the house in order to arrest tt-e oc. cupier or any of. his family who have their domicgle-their ordinary residence there; for if a stranger, whose ordinary residence is else- where, upon a pursuit Ltaketh refuge in the house of another, this is not hiscastle-he cannot clamthe benefit of sanctuary init. And Lord Hale savs that, upon a wvarrant for probable cause of suspiciorn of felony, the officer may break open such person's own bouse-so muchi more mnay he break op-n the house of- another, to take him, for so the sheriff may do uipon a civil process; but then he must at his peril see..'-at the felon be there; for if the feIno' be net there, be is a trespasertotlie stranger whose houseit is."!-2 FT1-ie's Mist. 117. "1 No man's bouse shall be any privilege to or for any stranger, nor shall exterd to protect any person that shall fly thither, nor to pro. tect the goods of any other that shall be brought or conveyed thither to prevent any lawful executionj ortsoescapet ordinary processof law; biittheprivilege of every man's house shall extendonly tohitselfani his family, and to and for his proper goods, or to suceh as are there lawfully, aud without fraud or covin. And therefore, if the sheriff, having process to be executed upon the body or goods of any stranger, do desire to have the door opened, or to have the body of the party flying, &a thither, or the -goods of another brought thither, to be delivered unito him, after such request made to open the door, or to have the body or goods of such persoi delivered him, if de- nial or refusal be made, or that it be not done, then the sheriff or his officers may break open the house, and mnay execute the process without any danger of law."--Date! c. 95. 5 C'o. 93. "A lso, if the sheriff do break o en the ho use (in any of tbe aes lasit aforesaid) where any of the 'or of the same ho-use be open, whereby he mav enter, or where he may open the door by a key or otherwise, withoiit breaking the hiouse or door, he is a traspasser, andsI ubject to an actiorn."-Dolt. c. 95. On a cr. so. a person was arrestea by the sheriff and escaped, and got into his house, and the sheriT trooke open the door and took himi again, Siir Henry AMontague, Chief Justice said, "1True it is, that an house is a castle for himi that dwelleth there for his repose and safety, and that it is privileged against the execution of the subject, wben it is close and the doors shut yetwhenin his ase he ntre of he inister of justice was lawfl,ad th ower f th hose sallabue this privileje,and shall mak reistnce an shll sv is and, &. un the minister of thelaw hebat threb lo't is rivleg, siX0athmade resist. ant tothelaw whch ow illnotproecthimin such a case."- The sheriff is not, by the writ ofjt.faz., authorized to break, the dwelling-house, which is built for the protection of the iman and his family; hut when the officers are in the house, they may break open any chaniber-doors or trunks, for doing their execution.-Sid. 189, 2. Show. 87. The sheriff cannot break an outer door to arrest the defendant on mnesne process or execuiton.-Cro. Bliz. 908. it it; not lawful for the Sheriff (upon requxest made and denial), at the suit of a common person, to break the defendant's house, sell. to execute any process at the suit of any subject, for thereof would follow great *inconvenience, that men 'in the night as in the day should have their houses, which are their castles, broken by fo-rce, of whiich great daniage and mischief may follow; for hy colour there- of, upon a feigned suit, thehbouse of anyroan, at any time, might be broken, when the defendant may be arrested elsewhere ; and so mien should not be in safety or rest in quiet in their own houses ; anid that al though the sheriff be an officer of gveat authority and trust, vet it appearethi by experience, that the King's wrrits are execuited by bailiffi, persona of little or no value ; and it is not to be pre- sumed, that all the substance a man bath is in his hbouse, nor that a men will lose his liberty, which is so inestimable, if lie have suflicient to satisfy his debt; and all the hooks which prove that when the Drocess touctheth the K-ina, that the sheriff msay break the house, implies, that at the suit of the party the house may not be broken, otherwise the addition (at the suit of the Kilng) should be vain and frivolous.L-5 Co. 93. And in Cook's case, Cro. Car. 557, he was found guilty of man- slaughter only, and that case was ireferred to, by Lord Ellenborough in 1 Btirdett, Bart,, v. Abbott (14 East, 156.), as ant zuthiorty to skhow that an execution at the suit of an individual, inot for the pub- lic good, cannot be carried into effect bv breaking open the outer door. In this case, as in all the others Aiich I hive been able to find, thje process appears to have been against the ownerbimself, and not against a lodlger or stranger sheltered therein, It is said in Dyer, that if the sheriff break open'the house to arrest one within the house by virtue of a copias, in debt or trespass, he shall be punished!, for this is a particular case, and is not-for the puib- lie'good. Holt, C. .1., at the Old Bziley sessions, Dee. 1701, held that where inmates have separate roomsin -a-ltitnsai if they enter at the same outer door as the owner, the rooms are not the dwelling- house of the inmates, bitt of the owner. If the officer finds shie outer doorcs open,lie miay lawfully maike ex- ecution and break open -the innier doors for thepurpoie,and aresistance aifter is a resistance againsttbelawand the justice oftherealm,andhav.. ing wel commnenced the exccution,he m5yproceed in it,and removeahl obst'acleg which retard the execution.-.2 Roll Rept:s., 137. But if thte door be shut to, and onlv latched(but not locked norbarred), the officer mnay not draw the latkh and sQ enter.-Dalt. 350. And yet if the door be open, andi the sheriff' or 'jibilliffn cormle to the hiouse sad showed h thie king's process, and offiereth to enter to execute tile samne process (be-ing at the stilt of any, subject), and the owner of the house, &e., shuts the door against the sheriff, &e., here the officer, giving notice of the cause of his coming, and requesting to have the doors openied, may break open the house, if the party refhsethi to open the door-5 Co., 92 ; and if one be arrested, and after escapes into his house, the shieriff miay brea'k open the doors to take himn; as where a verson opened his casemoent and the sheriff took hini by the band..f Roll Rep., 138; 6 Mod., 173. In the case of a fi. fa. the sherilffmay enter the defendant's house,the outer door being opent, to seize goods, a-nd his justification does not depend on his finding or net finding thiem there ; and he mnay enter the hiouse of a -tranger for the ame uypa-e,and is justified if the goods are in it; but it is at Iiis wn r sk 5 Taeen., 785. A bailiff in execution of iiesmo process mnay break open the door of a ledger's apartment, having first gained peaceable entrance at the outer dloor of the house-." Lee v. (ranseIll" I UCtwp. 1, 8 Taial, 250 ; but such ent-rance at the outer door nnust not be by craft or violence-.Dul. 529 ; and admit- tance muist be previouslJy demanded at the inner door.-Dalt. 528 3Dos ,udull 23:Contirain thecase ofthedefendant'sbhouse, 4 Tuent. 619, and Gibbs Justice was of opinion that the sheriff find-. ing the door open would be justified to searchi for the defendant's personif he'k'ad a reasonable ground to believe that the person was hi the .iose; becauise, if he had informiation thait the person was in the house, and should return non es-t inaetus without going to take himn, and it s'hould he proved the person really was there, the sheriff would be liable to an action for a false returnr...A Teann 2a. The case of " liee v. (lansell," 1 Cewp. vi.I, his a Aasterial case, and an far as is is relevant to the uesttoon now raised I will state it. A gentleiman of the napae of Mayo was owner of the houxse in whichi Gentral Gansell liaa, at the tlime in qLuestioni, and for 28 years before, lodge4, by occupying the first and second floors, each of wi ich con- sisted of two rooms : he had the use- also of the kiteben, anddlke rent.. ed these apartments as a lodger fromn year to year. Mlr. MAy-o lived in the house, and there was but one outer door to the house it which Mlr. Alayo entered to go to his. apartment, and General Gnelt his. (General Gansell was up two pair of stairsi i bedlebamber, and bis~ door wvas locked: the outer- door of the house being open, the officers entered, and went up to the second floor;- and af'ter notice and refusal broke it open : the question was, whether by law this door could be broken open; Lord Mlansfield said, "' lie books talk of the ;privilede of a mansion-house, and of the privlilege of the door of it, which cannot be broken open-t he. whole qestion wvill, therefore, tern upon the exteilt of that wltich iar, ifedpriviledge. Now, ihis rule- of privii- lege, ~risin'g fromnis sound maxim of poliev, is no privilege. of a debtor, properly speaking., who absconds fron.6 justice in avoidance of legal process, but is -annexed to the hlous'e and door for the protec- tion of a mnan and his faniily. It is therefore, by consequence only, that the privilege is a kroteetioni to such -a person, and not for bisi owln sake." The s-oundE maxim of policy is this.-- That a greater evil should he avoided for a less, anda that a less goodI should give wvay. to a greater." The outer door, therefore, or window of a man'a hiouse, says the la,v, shiall not be broken open by process. This has been long and well understood , the ground of it is this, that other.. wise the consequences would be fatal, for it would leave the family wvithin naked and exposed to thieves and robbers ; it is muchi better, therefore, says thte lawv, that you should wait for aniother opportuniity than do an act of violence, whichn may probably he attended with such dangerous consequences. Rut as this is a miaximi of law uitt e- spect of political justice, and makes no part of the privilege of a debtorlifitiself,it is to be takeni strictly, and not to be e.-tended by~aiy 'equitable analogous-interpretation...n' c'ase or dictuim lies been citedl at the bar, nor indleed d-d there,ever exist a case- which intiatet a dubt.wheher n iner d iiiighit not be broken open. I sallcit a erysesibe ad mteraldistinction fromi abook in payhisds,whih i Foter C.la. tileHomicide, c. 8. s. 20., whbich is thn-" he nle tht evry mn's ouse is his castle, when. ap- plie to rress o legl prcess ha bee cariedas fara.political. ~nsti wil warant,and erhap furher tan i t -1 scal o - reso ire mutt atitire to ru'les wvell knownmai c-';cablisbed; but thisrule is not one of those that will1 adlmit of any extensioni. It must, therp- fore-, as I have before hinted, 'be conffoed to the breach of window,s andi of outer doors intended for the vecurity of the house against per- sons from witiotit enideavourillg'to break in." His Lordhn coni' nues and saysi, "Thius brings,the qiiesstion to this point-..whether thia wias the outer door to the house of the' tdefendant, for the law does notprivilege an inner-dooir; and we are almiost decarly of' opinion that it was not, and thiat by law this door was legally. bioken open.ll twill now refer to a fewv cWius to show the liability of the sherifl A shieriff shall be fined and-amerced for every det-ault in the pxecu.. tion of bis of6le, thiouigh it be by nel-,ect or fr.aud oftlte under sheriff, Lat. 187. The sberifi'and.hsofcr rea hi ei toexecute all writs airectiea to thetn with speedl aiid secrecy.-21 Hen. VII. 23. A. 6. Co. 54. ; and in so) doing they are'not to use needless force a'nd terror, nor break, oPen-deoxs unlawfully, nor,treat persons basely and inhumanly, or keep them in cutstody untsl'they congent to'J,ay money for, their deliverance, o1' take muoney for, taking- bail, or for mfak-ing an airest witnout authority, by force of a bllank warrant, filled uip wviti the namneWo a special bailiffi with'out the privity or subsemlent pqrcecment of (lie sberiflt..Fiuc4, 237.; 2 Buir-., Zh26. Ti sheriffis not obliged, but' he 'may raise the posse conzitatut to sezveuiesne process in ease of resistance-.Rr. Retooar de Beres i 103. ;~2Liv. 104.; Afoor, 852. And every mnan is bound'b commnla to~ssitt,not tul thesheiffin hisuofficef-or tie execssu tioaof te Kig's ritsaccodingto l ir,bt also his baUifil'that lhes thesheiffs wrrat i tht bhal, ad: has thie sante authority whsihhs~snstet, ta seri~has fo the priiTfcannot do all :hiin. au4 j~lt~'4~iitsiot~ g~r~used;they shhU bW fluet and imp AS O za- 123. The sheriffael be amteMd, if he re. I turd aththe camtotdloexecution; ind if he cailnotdo excution bz a pdstccomh?rz, he Oughttoacqua=it the deputylieutenants of the I county; and if they assist not, he must acquaint the King and Council._l Hei. 99, pt SI. The killing of til bctriff or biioffi.l icers doing their duty is murder in hinm wbo commits the acm, for the la presumesmalice though none beproved; so itis if anyaicL therein; and anr officer) if he be tesisted 2s not boand to fly to the val!, as other subjects are.-Cro. Jac, 2X0, pl. 13. And where a person haning authority to arrest or impnson using the proper mesns is resisted in so doing, and the party making resistance ig Led in the struggle, it is Justi6able hoinicide..hMe, 481. But if a defendant in a civil EUit, being apprehensive of an arrest, fieth, the offlcer pursueth, and in the pursuit kdleth him, it wi1l be mur- der.._jb,j If the sberifltakes the passe condlatus without suffi- cient cause, yet they are aU discharged, and mayjisutify their doing at hiscommand-.( H1. 7.) As this question has not, it would appear, aruetr it is material in reading and considering the cases,in what sense theword "house" is used, and to attend to the ambiguous exprejzlon$ in the books, sometimes saying thehouse, at other times defendant's house. Itap- pears that those expressions 7hoUyapply to~ e33zesof the orwner, ana not to thoseofa stranger or lodger, stayig there to evade process. It is not for mc to anticipate the arguments,Jkn thstthev would be material. It demands, however, the eenous at~ion of ti pb lie, and cannot be too extensively known. V. . ZuUEJnampton-baldings, Jan. 12. - A.RAPST OX MPS2R-PROCESS,