Burton v. Wilkinson

The opinion of the court was delivered by Williams, Ch. J. But two questions have presented themselves to the consideration of the court in this case. 1. As to the power of a person, specially deputized to serve a writ, in relation to the breaking of doors. 2. As to the claim set up by the plaintiffs under the title of Houghton. A person deputed to serve a writ, as was the defendant Wilkinson, has all the powers, which may be exercised by a sheriff in serving or executing any process, except that he is not to be recognized or obeyed as a sheriff, or known officer, but must show his authority, and make known his business, if required by the party who is to obey the same. In this particular he represents a special bailiff, rather than a known officer. To make an attachment, or to levy an execution on goods, the sheriff cannot break open the outer door of the debtor’s dwelling house. It is otherwise, if the goods of a stranger are secreted in the dwelling house. A barn, or out house, adjoining to and parcel of the house, or within the curtilage, may be broken open to make such levy; but a request must first be made for admittance. A barn in the field may be opened without request. Penton v. Brown, 1 Keb. 698, [19 Vin. 432.] Haggerty v. Wilber, 16 Johns. 287. There is nothing to prevent a sheriff from serving an execution in the night, as well as in the day time. Wil [190] kinson was therefore justified in breaking into the warehouse in question, to serve an attachment on the goods of any person therein; — but he must first demand admittance. . In this case it is stated, that he did demand admittance of the persons who had the key ; but it is objected, that the plea does not state but that the persons, who had the key, were wrongfully in possession. We think this was not necessary. If he demanded admittance of those who had the custody and care of the key, and who could have let him in without compelling him to resort to force, it was all that was necessary ; and he was not bound to inquire how, or in what way, they became possessed of the same. A demand of the plaintiffs for admittance could have been of no use, as they could not have unlocked the door, while Bogue and Walker had the key. If there has been any collusion between the defendants and Bogue and Walker, which would have made the defendants liable, it should have appeared in the replication. A sheriff would have been justified in breaking open the warehouse of the plaintiffs to do execution on the goods of Cutter, having first demanded admittance of the person who had the key. The next inquiry is, whether the plaintiffs, having undertaken to keep the butter for Houghton, are bound to keep it for him at all events, and are estopped from setting up against him the proceedings had in the suit in favor of Houghton against the defendants, in which the decision was against Houghton’s claim. It is undoubtedly true, that, when a wharfinger receives goods, or acknowledges the title of another, and agrees to receive or keep goods for such persons, he cannot dispute the title, in an action brought by such person against him. The cases of Goslin v. Birnie, 7 Bing. 339, [20 E. C. L. 153.] Holl v. Griffin, 10 Bing. 240, [25 E. C. L. 118.] Harmon v. Anderson, 2 Camp. 243, and Stonard v. Dunkin et al., 2 Camp. 344, establish this point. The wharfinger is the agent of the person, of whom he receives the goods, and cannot dispute the title of his principal, in an action brought by the principal against him. But this cannot protect the goods, thus received, from an execution against the person thus depositing them ; and if they are taken from the wharfinger, or warehouseman, by lawful process, the wharfinger, or warehouseman, can protect himself, in a suit brought against him by the owner. If the person, from whom [191] the wharfinger, or warehouseman, receives the goods, claims the same by a title illegal, so that he cannot lawfully hold them, and they are taken by authority of the law out of the custody and care of the wharfiuger, the latter may show this in excuse for not delivering them. The plaintiffs, in this case, set up a title in the property in Houghton ; but if Hougbton himself has set up the same title against these defendants, and it has been decided against him, he would be es-topped thereafter from claiming the same goods under the same title. W'e cannot therefore doubt, that if a suit were now instituted by Houghton against the plaintiffs, founded on their recognition of his title, it would be competent for them to defend against such suit, by showing that the butter was taken from.their possession by process of law against Cutter, and that Houghton has instituted a suit against the officer serving the process, and that his title has been found defective and the officer serving such process justified in taking the property. The liability of the plaintiffs to Houghton for the butter did not protect it against the creditors of Cutter, if Houghton’s title has been found and adjudged tobe invalid, as against such creditors. The rejoinder, therefore, fully answered the replication. The judgment of the county court is therefore affirmed.