#### The State v. Armfield and Wright.

From Surry.

An officer cannot break open an outer door or window to execute civil process ; and if the door be partly closed by those within, who are resisting the entrance of the officer, and be not entirely shut, the officer is guilty of a trespass should he oppose them with force, and thereby gain an entrance.

This was an indictment for a forcible trespass in breaking and entering the dwelling-house of one William Patterson, and the case presénted the following facts.

Tlie Defendant Wright was a Constable, and had in his hands writs ofagainst the property of William Patterson, at the suit of the other Defendant, Armfield. Wright, accompanied by Armfield, went towards the house of Patterson, for the purpose of making a levy, when a member of the family of Patterson, seeing their approach, jumped into the house, and for the purpose of preventing the entrance of the Defendants, attempted to shut the outer door, and while in the act of shutting it, but before it was entirely closed, the Defendant Wright pushed against the door, and entered the house. The door was so far closed that it could not have been opened without the exercise of some force. The other Defendant, Armfield, was present.

The Court below instructed the Jury, that if the Defendant Wright forced the door in the manner represent*247ed, noi withstanding he came as an officer to execute civil process, be w as a trespasser, and if the other Defendant was present, aiding, abetting and assisting, lie also was guilty. The Jury found the Defendants guilty, in manner and form as charged in the bill of indictment. A rule was obtained to shew cause why a new tidal should not be granted, which upon argument was discharged by the Court, and judgment was rendered against the Defendants i from which judgment the Defendant Armficld appealed.

J. Martin for the appellant,

contended, that to constitute a breaking in law, the door must he entirely closed, and cited 4 Blacks ¿one 326 — Serna fne's case, G Hep. 93.

The Attorney-General, in reply,

relied on 3 Blacks ton: 388, note by Tucker — Foster's G. L. 320 — Lee v. Gansd. Ganvp. 1.

Taylor, Chief-Justice

I am of opinion that the: charge of the Court was correct in this case, and that the Defendant was properly convicted. The law is dearly settled, that an officer cannot jad,ify the breaking open an outward door or window, in order to execute process in a civil suit j if he doth, he is a trespasser. A man's house is deemed his castle, for safety and repose to himself and family j but the prelection thus afforded would he imperfect and illusive, if a man were deprived, of the right of shutting his own door when he sees an. officer approaching to execute civil process. If the officer cannot enter peaceably before the door is shut, he ought not to attempt it, for this unavoidably endangers a breach of the peace, and is as much a violation of the owner's right, as if he had broken the door at first.

The case cited for the Defendant from Glh DoWs Me-ports, only shews that the privilege of a man’s house is confined to the occupier, or any of his family who have •heir domicile there, and shall not protect any person *248who flies thither, nor the goods of any person conveyed ^iere to prevent any lawful execution, or to escape the ordinary process of the law. There the owner shut the door to protect the goods of a stranger, after the officer had shewn his process and offered to execute the same, and after he had given notice of the cause of his coming, and requested to have the doors open. And certainly shutting the door could not lessen the right which the officer had if he had found it shut on his arrival. The judgment must be affirmed.

By the Court. — Judgment affirmed.