ORCHARD V. WILLIAMSON

703

void. This argument seems to be based on the supposition that the constable had a right to levy on either one of the mares, but not on both; a position, which is considered as entirely untenable. Both of them, if necessary for the payment of the two executions mentioned, were properly levied on, and might have been sold, if the first one sold had failed to bring the amount required. Suppose the levy had been made on the black mare first, would the contract of exchange between Millian and Williamson have been thereby vacated, so that the latter would have had a right to demand from the constable the bay mare, after he had taken her into possession under levy? It is clear that he would not. Williamson would, in such case, have his action against Millian for passing property to him which had been subsequently taken and sold by a paramount claim; but he would have no more right to the property, with the title to, and possession of which he had parted, than he would have had to it, if, instead of receiving by way of exchange the black mare, Millian had assigned him a note on some insolvent man; for, in either case, Millian would be presumed to have acted in good faith, until the contrary should be made to appear. It is, to be sure, a misfortune for an individual to lose the property parted with, as well as the consideration which he supposes he has received; but his misfortune, in such a case, is similar to those which must be necessarily encountered, in many cases, by persons contracting for property with men who have not a valid title to it, and may be unable to make compensation for the injuries sustained. Suppose that Millian had given to Williamson, in the exchange, $50 as an estimated difference in the value of the two mares, and so soon as he got the bay mare, had swapped her to a third person, who had exchanged her with a fourth, for another horse; and under such circumstances, the constable had levied on the mare in Williamson's possession; would he, in such case, have a right to retake the bay mare? It is evident that he would not. And why? Because, although once the owner of her, he had parted with his title to her, and delivered possession; and Millian would then have an unquestionable right to dispose of her as he might think proper. In this case he had not sold her, but she was taken under execution by an officer of the law, and the right of the plaintiff in such execution to have sold her, if necessary to the discharge of his executions, was as undeniable as would be the right of the individual, in the case put, to retain possession of her as his own property.73

Reversed and remanded for further proceedings.

"The general lien of an execution binds property acquired by the debtor after the writ has come into the hands of the sheriff and while the writ is current and unsatisfied. Shafner v. Gilmore, 3 Watts & S. (Pa.) 438 (1842); Brown v. Burrus, 8 Mo. 26 (1843); Ray v. Birdseye, 5 Denio (N. Y.) 619 (1846); Grooms v. Dixon, 5 Strob. (S. Car.) 149 (1850); Wilson, Sieger & Co.'s Appeal, 13 Pa. St. 426 (1850); Ruttan v. Levisconte, 16 U. C. Q. B. 495 (1857); Schuylkill's Appeal, 30 Pa. St. 358 (1858); State v. Blundin, 32 Mo. 387 (1862); Roth v. Wells, 29 N. Y. 471 (1864); Carrier v. Thompson, 11 S. Car. 79 (1878), before code; Blatchford v. Boyden, 122 Ill. 657, 13 N. E. 801 (1887); Clifford v. Logan, 9 Manitoba 423 (1894); Second Nat. Bank v. Gilbert, 174 Ill. 485, 51 N. E. 584, 66 Am. St. 306 (1898); Boisseau v. Bass,

In an action on the case by Peter Semayne, plaintiff, and Richard Gresham, defendant, the case was such: the defendant and one George Berisford were joint tenants of a house in Blackfriars in London for years; George Berisford acknowledged a recognizance in the nature of a statute-staple to the plaintiff, and being possessed of divers goods in the said house died, by which the defendant was possessed of the house by survivorship, in which the goods continued and remained; the plaintiff sued process of extent on the statute to the sheriffs of London; the sheriffs returned the conusor dead, on which the plaintiff had another writ to extend all the lands which he had at the time of the statute acknowledged, or at any time after, and all his goods which he had at the day of his death; which writ the plaintiff delivered to the sheriffs of London and told them that divers goods, which were the said George Berisford's at the time of his death, were in the said house; and thereupon the sheriffs, by virtue of the said writ, charged a jury to make inquiry according to the said writ, and the sheriffs and jury accesserunt ad domum 100 Va. 207, 40 S. E. 647, 57 L. R. A. 380, 93 Am. St. 956 (1902); Birch River Boom &c. Co. v. Glendon Boom &c. Co., 71 W. Va. 507, 76 S. E. 972 (1912); Postell v. Avery, 12 Ga. App. 507, 77 S. E. 666 (1913). Articles acquired after the return of the writ are not bound. Lloyd v. Wyckoff, 11 N. J. L. 218 (1830); Mathews v. Warne, 11 N. J. L. 295 (1830); Cook v. Wood, 16 N. J. L. 254 (1837); Farrel v. Copeland, 18 W. N. C. (Pa.) 94 (1886). And a specific lien acquired by a levy on particular property will not bind after-acquired property. Caldwell v. Fifield, 24 N. J. L. 150 (1853). "Where the sheriff levies on a specific article, or articles, naming them, without more, he will be confined to his levy; as for example, where he levies on a horse, he will not be permitted to sell a cow, or other article of property." Wilson, Sieger Co.'s Appeal, 13 Pa. St. 426 (1850). The lien of an execution on domestic animals attaches to their young after they are born. Talbot v. Magee, 59 Mo. App. 347 (1894). Compare: Blum v. Light, 81 Tex. 414, 16 S. W. 1090 (1891). So a levy on sheep includes the wool that may grow during the existence of the lien of the execution. Young v. Williams, 21 N. Y. W. Dig. 249 (1885).

The lien of an execution without levy expires with the return day. Cook v. Wood, 16 N. J. L. 254 (1837); Hathway v. Howell, 54 N. Y. 97 (1873); Sturges' Appeal, 86 Pa. St. 413 (1878); Walker v. Henry, 85 N. Y. 130 (1881); Boyer v. Miller, 200 Pa. 589 (1901); Olden v. Sassman, 72 N. J. Eq. 637, 66 Atl. 603 (1907). But by levy on personalty the officer acquires a special property in the goods seized which he may sell before or after the return day in satisfaction of the writ. Religious Society of Roman Catholics v. Hitchcock, 2 Browne (Pa.) 333 (1811); Taylor v. Mumford, 3 Humph. (Tenn.) 66 (1842); West v. Shockley, 4 Harr. (Del.) 287 (1845); Paxson's Appeal, 49 Pa. St. 195 (1865); Herrell v. Sizeland, 81 Ill. 457 (1876); Spencer v. Haug, 45 Minn. 231, 47 N. W. 794 (1891); Ansonia Brass &c. Co. v. Conner, 103 N. Y. 502, 9 N. E. 238, II Civ. Proc. R. 371 (1886).

"Same case Cro. Eliz. 908; Yelv. 28; F. Moore 668; I Smith's L. Ca. (11th ed.) 104.

praedictam, ostio domus praedict' aperto existen' et bonis praedictis in praedicta domo tunc existen' and they offered to enter the said house, to extend the goods according to the said writ; and the defendant praemissorum non ignarus intending to disturb the execution, ostio praed' domus tunc aperto existen', claudebat contra vicecom' & jurator' praed'; whereby they could not come, and extend the said goods, nor the sheriff seize them, by which he lost the benefit and the profit of his writ, etc. And in this case these points were resolved:

I. That the house of every one is to him as his castle and fortress, as well for his defense against injury and violence, as for his repose;75 and although the life of a man is a thing precious and favored in law; so that although a man kills another in his defense, or kills one per infortun, without any intent, yet it is felony, and in such case he shall forfeit his goods and chattels, for the great regard which the law has to a man's life; but if thieves come to a man's house to rob him, or murder, and the owner or his servants kill any of the thieves in defense of himself and his house, it is not felony, and he shall lose nothing, and therewith agree 3 E. 3. Coron. 303, 305, and 26 Ass. pl. 23. So it is held in 21 H. 7, 39, every one may assemble his friends and neighbors to defend his house against violence; but he can not assemble them to go with him to the market or elsewhere for his safeguard against violence; and the reason of all this is, because domus sua cuique est tutissimum refugium.

2. It was resolved, when any house is recovered by any real action, or by eject' firmae, the sheriff may break the house and deliver the seisin or possession to the demandant or plaintiff for the words of the writ are, habere facias seisinam, or possessionem, and after judgment it is not the house in right and judgment of law of the tenant or defendant.76

3. In all cases when the king is party, the sheriff, if the doors be not open, may break the party's house, either to arrest him or to do other execution of the king's process, if otherwise he can not enter. But before he breaks it, he ought to signify the cause of his

75

"The forbearance of the borough law in refusing to allow officers to enter a burgess's house to arrest, attach or distrain, was the forbearance of early folk-law, which made a man's house his castle, or rather his temple, for the sanctity of the house seems to have been due to the religious origin of the house-peace." Bateson, Introduction to Borough Customs, Vol. II, Selden Society. See Cicero Pro Domo, 41.

London (1122), Liber Albus, p. 69. "De quibus ita solet esse quod accusati non solent attachiari nisi in medio vico et in via; quia non in domibus nec sub appenticiis."

Northampton (circa 1190), Custumal, I, cap. 19, § 1. “Nullus ballivus potest capere naman in domo probi hominis neque super stallis ejus pro aliquo planctu neque pro ullo debito nisi pro debito domini regis nisi per judicium quod pertinet ad coronam domini regis." Borough Customs, Selden Society, Vol I, p. 103.

Accord: Howe v. Butterfield, 58 Mass. (4 Cush.) 303, 50 Am. Dec. 785 (1849). See note to Upton v. Wells infra page 810. So also where the writ is for the recovery of specific chattels. Keith v. Johnson, 1 Dana (31 Ky.) 604, 25 Am. Dec. 167-n (1833); Howe v. Oyer, 50 Hun 559, 3 N. Y. S. 726, 20 N. Y. St. 685 (1880); Jones v. Herron, 1 Pa. Dist. R. 475 (1892). Contra: State v. Beckner, 132 Ind. 371, 31 N. E. 950, 32 Am. St. 257 (1892).

45-CIV. PROC.

coming, and to make request to open doors; and that appears well by the statute of Westm. I, ch. 17 (which is but an affirmance of the common iaw) as hereafter appears, for the law without a default in the owner abhors the destruction or breaking of any house, which is for the habitation and safety of man, by which great damage and inconvenience might ensue to the party, when no default is in him; for perhaps he did not know of the process, of which if he had notice, it is to be presumed that he would obey it; and that appears by the book in 18 E. 2 Execut. 252, where it is said that the king's officer who comes to do execution, etc., may open the doors which are shut, and break them, if he can not have the keys; which proves, that he ought first to demand them, 7 E. 3, 16. J beats R so as he is in danger of death, J flees, and thereupon hue and cry is made, J retreats into the house of T they who pursue him, if the house be kept and defended by force (which proves that first request ought to be made) may lawfully break the house of T for it is at the king's suit. 27 Ass. p. 66, the king's bailiff may distrain for issues in a sanctuary. 27 (28) Ass. p. 35, by force of a capias on an indictment of trespass the sheriff may break his house to arrest him; but in such case, if he breaks the house when he may enter without breaking it (that is on request made, or if he may open the door without breaking), he is a trespasser, 41 Ass. 15, on issue joined on a traverse of an office in chancery, venire facias was awarded returnable in the king's bench, without mentioning non omittas propt' aliquam libertat'; yet forasmuch as the king is party, the writ of itself is non omittas propt' aliquam libertat', 9 E. 4, 9, for felony or suspicion of felony, the king's officer may break the house to apprehend the felon, and that for two reasons: I. For the commonwealth, for it is for the commonwealth to apprehend felons. 2. In every felony the king has interest, and where the king has interest the writ is non omittas propter aliquam libertatem; and so the liberty or privilege of a house doth not hold against the king."

4. In all the cases when the door is open the sheriff may enter the house, and do execution, at the suit of any subject, either of the body or of the goods; and so may the lord in such case enter the house and distrain for his rent or service, 38 H. 6, 26a. 8 E. 2 Distr. 21 & 33 E. 3. Avow. 256, the lord may distrain in the house, although lands are also held in which he may distrain.78 Vide 29 Ass. 49. But the great question in this case was, if by

"Accord: Brigg's Case, 1 Rolle 336 (1615); Burdett v. Abbott, 14 East I (1811); Launock v. Brown, 2 B. & Ald. 592 (1819); Harvey v. Harvey, L. R. (1881) 26 Ch. Div. 644.

Ryan v. Shilcock, 7 Exch. 72 (1851), holds that the lifting of the fastening by which a door is kept closed is not unlawful in making a distress, Pollock, C. B., saying: "The landlord has authority by law to open the door in the ordinary way in which other persons can do it, when it is left so as to be accessible to all who have occasion to go on the premises." Accord: Dent v. Hancock, 5 Gill (Md.) 120 (1847). Contra: Curtis v. Hubbard, 4 Hill (N. Y.) 437, 40 Am. Dec. 292 (1842). See State v. Armfield, 2 Hawks (N. Car.) 246, 11 Am. Dec. 762 (1822); Long v. Clarke, L. R. (1894) I Q. B. 119.

force of a capias or fieri facias at the suit of the party the sheriff, after request made to open the door, and denial made, might break the defendant's house to do execution if the door be not opened. And it was objected, that the sheriff might well do it for divers causes. 1. Because it is by process of law; and it was said, that it would be granted on the other side, that a house is not a liberty, for if a fieri facias or a capias be awarded to the sheriff at the suit of a common person, and he makes a mandate to the bailiff of a liberty who has return of writs, who nullum dedit respons' in that case another writ shall issue with non omittas propter aliquam libertatem; yet it will be said on the other side that he shall not break the defendant's house as he shall do of another liberty; for whereas in the county of Suffolk there are two liberties, one of St. Edmund Bury, and the other of St. Etheldred of Ely, suppose a capias comes at the suit of A, to the sheriff of Suffolk to arrest the body of B, the sheriff makes a mandate to the bailiff of the liberty of St. Etheldred, who makes no answer, in that case the plaintiff shall have a writ of non omittas, and by force thereof he may arrest the defendant within the liberty of Bury, although no default was in him. 2. Admitting it to be a liberty, the defendant himself shall never take advantage of a liberty; as if the bailiff of a liberty be defendant in any action, and process of capias or fieri facias comes to the sheriff against him, the sheriff shall execute the process against him; for a liberty is always for the benefit of a stranger to the action. 3. For necessity the sheriff shall break the defendant's house after such denial as is aforesaid, for at the common law a man should not have any execution for debt, but only of the defendant's goods. Suppose then the defendant would keep all his goods in his house, and so the defendant himself by his own act would prevent not only the plaintiff of his just and true debt, but there would also be a great imputation to the law, that there should be so great a defect in it, that in such case the plaintiff by such shift without any default in him should be barred of his execution. And the book in 18 E. 2. Execution 252, was cited to prove it where it is said, that it is not lawful for any one to disturb the king's officer, who comes to execute the king's process; for if a man might stand out in such manner, a man would never have execution, but there it appears (as has been said) that there ought to be request made before the sheriff breaks the house. 4. It was said, that the sheriffs were officers of great authority, in whom the law reposed great trust and confidence, and are to be of sufficiency to answer for all wrongs which should be done; and they had custodiam comitat, and therefore it should not be presumed that they would abuse the house of any one by color of doing their office in execution of the king's writ against the duty of their office, and their oath also, but it was resolved, that it is not lawful for the sheriff (on request made and denial) at the suit of a common person, to break the defendant's house, sc. to execute any process at the suit of any subject; for thence would follow great inconvenience that men as well in the night as in the day should have their houses (which are their castles) broke, by color whereof, great damage and mischief might ensue; for by color thereof, on any