Saunders v. Millward

4 Del. 246

• Court: Superior Court of Delaware
• Decided: July 5, 1845
• Status: Published

Opinion

The Court:

Harrington, Judge.

—It appears by the evidence that these goods were taken by the defendants, and there was some degree of violence. The jury must determine whether the violence used was justified or excused, and how. The defence set up is: 1st. A justification as a public officer in execution of lawful process of execution. 2d. By a license from the plaintiff himself.

Every man’s property, especially that which is in. his house, is under the protection of the law; and the taking possession of it without his consent or by due warrant of law, and in the mode allowed by the law, is a trespass. It is for the defendants in this case there fore, to excuse the act of taking possession of this property by the permission of the plaintiff; or to justify it by authority for making the levy in the first instance, or the right to resume possession of property previously levied on.

Guthrie, for plaintiff. Gray, for defendants.

A public officer has no right to break open outer doors to make a levy. (3 Harr. Rep. 288.) If a levy has been once lawfully made, he may break doors to carry away the property or effect a sale. (2 Ibid. 495-6.) Yet if an officer be guilty of oppression under color of his process, he would be liable to exemplary damages. (2 Ibid 486.)

Verdict for defendants.