
    Curtis vs. Hubbard.
    Where a sheriff broke an outer door of a house for the purpose of levying on goods of the occupant; held, that the levy being illegal, even a visitor at the hotise might lawfully resist the sheriff’s attempt to remove the goods, using no more force than was necessary for that purpose.
    A new trial will not be granted because it appears by the bill of exceptions that the circuit judge, in pronouncing a correct decision, gave an erroneous reason for it.
    Though the outer door of a house is closed merely by being latched in the ordinary way, the sheriff has no right to inter for the purpose of levying by virtue’of a fi. fa. *
    What would be a breaking of the outer door in burglary, will be equally a breaking by a sheriff who enters to make a levy.
    If the outer door be shut, the sheriff has no right to enter, thbugh the owner br occupant be absent; for the house, under such circumstances, is equally a protection to .his family and goods, as to himself.
    And, semble, the protection extends to the person and property of a guest within the house, unless he has gone there to avoid the process held by the sheriff; in which case, the latter, after demanding leave to enter, and being refused, may "break open the Outer 'door.
    
      Trespass, assault and battery, tried at the- Oneida circuit April 23d, 1840, before Gridley, C. Judge. The plaintiff was sheriff of Oneida, and having a Ji. fa. against Schuyler Hubbard, the defendant’s brother, went to Schuyler Hubbard’s house for the purpose of levying. Schuyler Hubbard was in the door-yard, and forbade the sheriff’s coining on the premises. The outer door of the house was closed and latched. The sheriff entered the yard, proceeded to the house, opened it, (Schuyler Hubbard not being in the house,) and went in; and being about to fetch away a clock he had seized on the fi. fa., the defendant, who was there on a visit, and in the house, seized the sheriff as he was going out of it with the clock, and in the struggle that ensued, the sheriff was thrown down, but no more force was used than was necessary to prevent the sheriff from taking away the clock.
    The judge nonsuited the plaintiff, saying that the sheriff having entered the house illegally, had no right to levy; and even if Jhe had levied before, he had no right to enter; that forbidding the sheriff to enter the premises, was equivalent to forbidding his entry into the house; that there was no proof of excessive force, «fee. The plaintiff excepted, and now moves for a new trial on a bill of exceptions.
    
      C. P. Kirkland, for the plaintiff.
    
      C. Tracy, for the defendant.
   By the Court, Cowen, J.

No doubt a prohibition to enter on the premisés, comprehended the house; but none was necessary. The outer door was shut. That was itself a prohibition.

There was no evidence of a previous levy. The remark of the judge, therefore, in the course of giving his opinion on the motion for a nonsuit, that even a previous levy on goods in the house would not entitle the sheriff to break the outer door, was but giving a wrong reason for a correct decision. The true reason was, that he had made no levy.

There was nothing to submit to the jury on the question of excess.

But the point is made, that merely lifting the latch and thus opening the outer door, is not such a forcible breaking as the law forbids to a sheriff who holds civil process; and that the act must come up to a positive breaking, or, at least, the removal of some extraordinary fastening. The rule is clearly otherwise. It is enough that the outer door be shut. Then, merely opening it is a breaking, within the meaning of the law; and so all the books treat the matter. What would be a breaking of the outer door in burglary, is equally a breaking by the sheriff. These views may be collected from the following cases: Penton v. Brown, (1 Keb. 698;) Seyman v. Gresham, (Cro. Eliz. 908;) Biscop v. White, (id. 759;) Ratcliffe v. Burton, (3 Bos. & Pull. 223;) Lee v. Gausell, (Cowp. 1, 5;) Haggerty v. Wilber, (16 John. 288;) Buckenham v. Francis, (11 Moore, 40.) In this last case, a plea that the defendant peaceably and quietly entered the plaintiff’s dwelling house, to execute a fi. fa. against his goods, was held bad, because it did not allege that the outer door was open. (Vid. also Bradby on Distr. 136.) Lifting a latch is, in law, just as much a breaking, as the forcing of a door bolted with iron. The ordinary fastening is enough. Even sliding down a window fastened with pulleys, is such a breaking as would formerly cost a burglar his life; (2 Russ, on Crimes, 5, Am. ed. of 1836;) and a sheriff entering a house in that way to execute civil process, would be a trespasser.

But it is said, Schuyler Hubbard was not within. The outer door being shut, is equally a protection, whether the owner or possessor be within at the time or not. It is a general and unqualified protection against an officer having civil process, for the man, his family and goods. (Lemayne’s case, 5 Co. Rep. 93, 5th resolution.) And this includes every guest who is at the house, and also his goods, unless he has flown to the house, or carried his goods there, in order to avoid the process. In the latter case, the sheriff may break the door; but not even then, till after a demand of leave to enter, and a refusal. (Id. Lee v. Gausell, Cowp. 6.) The defendant was a mere guest; yet he was there on a visit to his brother’s house, and might on this ground, even without his brother’s request, interpose and prevent the sheriff from violating the house in any way. Pro hac vice, it was his own house.

New trial denied. 
      
      
         See The People v. Hubbard, (24 Wendell, 369.)
     