1. Those in which the process or order of the court describes the property to be seized, and which contain a direct command to the officer to take possession of that particular property. Of this class are the writ of replevin at common law, orders of sequestration in chancery, and nearly all the processes of the admiralty courts, by which the res is brought before it for its action. 2. Those in which the officer is directed to levy the process upon property of one of the parties to the litigation, sufficient to satisfy the demand against him, without describing any specific property to be thus taken. Of this class are the writ of attachment, or other mesne process, by which property is seized before judgment to answer to such judgment when rendered, and the final process of execution, elegit, or other writ, by which an ordinary judgment is carried into effect.

It is obvious, on a moment's consideration, that the claim of the officer executing these writs, to the protection of the courts from which they issue, stands upon very different grounds in the two classes of process just described. (1) In the first class he has no discretion to use, no judgment to exercise, no duty to perform but to seize the property described. It follows from this, as a rule of law of universal application, that if the Court issuing the process had jurisdiction in the case before it to issue that process, and it was a valid process when placed in the officer's hands, and that, in the execution of such process, he kept himself strictly within the mandatory clause of the process, then such writ of process is a complete protection to him, not only in the court which issued it, but in all other courts. . . . (2) In the other class of writs to which we have referred, the officer has a very large and important field for the exercise of his judgment and discretion. First, in ascertaining that the property on which he proposes to levy, is the property of the person against whom the writ is directed; secondly, that it is property which, by law, is subject to be taken under the writ; and thirdly, as to the quantity of such property necessary to be seized in the case in hand. In all these particulars he is bound to exercise his own judgment, and is legally responsible to any person for the consequences of any error or mistake in its exercise to his prejudice. He is so liable to plaintiff, to defendant, or to any third person whom his erroneous action in the premises may injure. And what is more important to our present inquiry, the Court can afford him no protection against the parties so injured; for the Court is in no wise responsible for the manner in which he exercises that discretion which the law reposes in him and in no one else.

In the case before us, the writ under which the defendant justified his act and now claims our protection, belongs to the latter class. Yet the plea on which he relied contains no denial that the property seized was the property of plaintiff, nor any averment that it was the property of either of the defendants in the attachment suit, or that it was in any other manner subject to be taken under that writ. . . . We

...

see nothing, therefore, in the mere fact that the writ issued from the Federal court, to prevent the marshal from being sued in the State court, in trespass for his own tort, in levying it upon the property of a man against whom the writ did not run, and on property which was not liable to it.

Judgment affirmed with costs.

1068. PIKE v. COLVIN

SUPREME COURT OF ILLINOIS. 1873

67 Ill. 227

APPEAL from the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge presiding. This was an action of trover, by Samuel Colvin, against Ivory H. Pike, a constable of McLean county. The defendant levied upon the property claimed by the plaintiff, under two executions, against one George Cornelius, and advertised and sold the same. The plaintiff claimed the mule levied on, under a chattel mortgage given by Cornelius to one William H. Miller, and assigned by Miller to plaintiff. He made a demand of the property before the sale, and the constable replied that he could not give up the property on mere demand, and advised the plaintiff to replevy the same and thereby try his claim of ownership. The mortgage provided that the mortgagor might retain possession and have the use of the chattels until the day of payment, etc., and also that, in case the said goods, "or any part thereof, in the meantime, shall become less valuable by misuse, or shall be attached or levied upon by any other creditor or creditors of the said George Cornelius, etc., then, whether said notes shall be due or not, the said William H. Miller, or his attorney, agent or assigns, or heirs, etc., shall have the right to take immediate possession of said goods and chattels, and sell the same at public sale," etc. The levy was made before the maturity of the last note, and while the property was in the possession of the mortgagor.

The case was tried by the court without a jury, who found the issues for the plaintiff, and assessed his damages at $75, and rendered judgment for that sum, and costs, from which the defendants appealed. Messrs. Straight & Straight, for the appellant. Messrs. Rowell & Hamilton, for the appellee.

Mr. Justice WALKER delivered the opinion of the Court: 1. It is contended that trover will not lie for the recovery of property wrongfully levied upon under an execution, but the owner is compelled either to replevy or try the rights of property under the statute. This is not the law. Where a sheriff or a constable, having an execution against one person, levies upon the property of another person, he becomes a wrong-doer, and his execution is no protection. It only protects him to the extent that he obeys the command of the writ, and no further.

The writ only commands him to seize the goods and chattels of the defendant in execution, and when he goes beyond the command of the writ, he becomes liable as though he had acted without any writ. Such an officer, having a fieri facias, is compelled to act at his peril. If the property seized is not that of the defendant, he incurs liability by levying and taking the property. On the other hand, if the property is that of the defendant, and he knows of it, or can know it by a reasonable effort, or is required by the plaintiff to levy on it, and he fails or refuses to do so, he becomes liable to plaintiff in the execution. He may frequently be placed in peril, as, if he levies, he will be sued by the claimant, and if he refuses, by the plaintiff in execution. But, like all other officers, he must perform his duty whatever the danger of suits and liabilities may be. Because he is armed with an execution against the property of one man, he does not thereby derive immunity for seizing the property of another.

2. When an officer seizes the goods of some other person than the defendant in execution, the owner may maintain an action, and trespass is the usual remedy of the owner. But trover may be maintained in many cases, as well as case, the writ forming no justification. In the modern practice, replevin may be employed in all such cases, and, as an additional remedy, the owner may resort to the more speedy and less expensive remedy of a trial of the right of property under the statute. Some of these remedies may be resorted to in all such cases, and others in some of them. Counsel are mistaken when they suppose that a trial of the right of property is the only remedy in such cases. The statute does not make it so, and the uniform practice has regarded the statutory remedy as simply cumulative to that given by the common law.

3. Until a breach of the condition in the mortgage, the mortgagor holds a contingent interest in the property that is liable to levy and sale on execution or attachment, and the purchaser becomes the owner to the extent, only, of the mortgagor, and succeeds to all of his rights.... After the maturity of the debt, or the failure of the condition upon which the mortgagor may retain possession, the mortgagee has the legal right to reduce the property to possession, and having done so, he has the legal right to retain it, and an execution or attachment can not deprive him of it. See Prior v. White, 12 Ill. 261, Merritt v. Niles, 25 Ill. 283. The interest of the mortgagor in this property was subject to levy and sale under the execution in the hands of appellant. Appellee having failed to try the right of property or replevy it, the officer was authorized to sell it subject to the mortgage, as he seems to have done. If he abused his process, or wrongfully aided in depriving appellee of his property, so that it became lost to him, the latter might, no doubt, have his action on the case; but the officer was and is protected by the command of his writ in selling whatever interest the defendant in execution held in the property, and hence the action of trover will not lie.

Appellee has, so far as this evidence shows, the right to reclaim the possession of the property and subject it to the payment of his debt, and may, no doubt, maintain replevin for it against the purchaser or person having its possession; or, as the title has vested in appellee, he may, after demand and refusal, maintain trover against the person having its possession. We have no hesitation in saying that this action was misconceived, and the judgment of the Court below must be reversed. Judgment reversed.

1069. MILLS v. PHELPS. (1901. 63 Kan. 14, 64 Pac. 694.) SMITH, J. . The rule is that, where an officer seizing property under process is sued in trespass or replevin by a stranger to the writ, who claims title anterior to the levy, then the officer can only justify by showing a judgment, if he acted under an execution; and, if a writ of attachment, that the parties at whose suit it issued, were creditors of the party defendant named therein. Crocker, Sheriffs, § 866; Cobbey, Replevin, § 1010; Thatcher v. Maack, 7 Ill. App. 635; 20 Enc. Pl. & Prac. 153; Johnson v. Holloway, 82 Ill. 334. In James v. Van Duyn, 45 Wis. 512-516, the opinion quotes the language of Chief Justice DIXON in Bogert v. Phelps, 14 Wis. 88-93, as follows: "In case of an action by the party against whom the process issued, the process itself, being valid on its face, constitutes a complete justification. In case of suit by another claiming title to the property seized under such party, which title is contested on the ground of fraud, he must, in addition to showing that he acted under such process, show that he acted for a creditor. When he acts under process of execution, this is done by producing the judgment on which it issued. If it be mesne process, then the debt must be proved by other competent evidence. This proof, however, is required, not because it affects the process, or is in that respect necessary to protect the officer, but because it affects the title to the property in question. No one but a creditor can question the title of the fraudulent vendee; and hence the officer must show that the relation of debtor and creditor exists between the party against whom the attachment or execution ran and the person in whose behalf it was issued."

(b) SUNDRY EXCESSES OF IMPLIED POWERS

1070. SEMAYNE'S CASE

KING'S BENCH. 1605

5 Co. Rep. 91

In an action on the case by Peter Semayne, plaintiff, and Richard Gresham, defendant, . . . these points were resolved.

1. That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose. . . 2. When any house is recovered by any real action, or by Ejectio 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, &c." and after judg

ment it is not the house, in right and judgment of law, of the tenant or defendant.

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 K's process, if otherwise he cannot enter; but before he breaks it, he ought to signify the cause of his coming, and to make request to open the doors. . . . For felony or suspicion of felony, the K's officer may break the house to apprehend the felon, and that for two reasons: (1) For the commonwealth, for it is for the commonwealth to apprehend the felons; (2) In every felony the King has interest, and where the King has interest, the writ is, "non omittas propter aliquam"; and so the liberty or privilege of an house doth not hold against the King.

4. In all 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. . . . 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 colour whereof great damage and mischief might ensue; for by colour thereof, on any feigned suit, the house of any man at any time might be broke when the defendant might be arrested elsewhere, and so men would not be in safety or quiet in their own houses. And, altho the sheriff be an officer of great authority and trust, yet it appears by experience, that the King's writs are served by bailiffs, persons of little or no value; and it is not to be presumed that all the substance a man has is in his house, nor that a man would lose his liberty, which is so inestimable, if he has sufficient to satisfy his debt..

5. It was resolved, that the house of any one is not a castle or privilege but for himself, and shall not extend to protect any person who flies to his house, or the goods of any other which are brought and conveyed into his house, to prevent a lawful execution and to escape the ordinary process of law; for the privilege of his house extends only to him and his family, and to his own proper goods, or to those which are lawfully and without fraud and covin there; and therefore in such cases after denial on request made, the sheriff may break the house.

1071. FRANCIS LIEBER. Civil Liberty and Self-Government. (1853. 3d ed., 1874, p. 59.) . . . Civil liberty requires firm guarantees of individual liberty, and among these there is none more important than the guarantee of personal liberty, or the great habeas corpus principle, and the prohibition of "general warrants" of arrest of persons. To protect the individual against interference with personal liberty by the power-holder is one of the elementary requisites of all freedom, and one of the most difficult problems to be solved in practical politics. If any one could doubt the difficulty, history would soon convince him of the fact. The English and Americans safely guard themselves against illegal arrest; but a long and ardent struggle in England was necessary to obtain this simple element, and the ramparts around personal liberty, now happily