Blatt v. Mcbarron
| Decision Date | 03 March 1894 |
| Citation | 161 Mass. 21,36 N.E. 468 |
| Parties | BLATT v. McBARRON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Elisha
Greenhood and A.S. Cohen, for plaintiff.
E.N Hill, for defendant.
The plaintiff contends that he had a right to enter the defendant's building, because he was a constable qualified to serve civil process, and had in hand for service a writ against a person who, as he supposed, resided in the building, but who, in fact, did not live there, but in another building on the opposite side of the street. The defendant was a stranger to the process which the plaintiff was undertaking to serve, and it is not contended that she had in any way induced the plaintiff to believe that the person against whom the process ran was in the building which the plaintiff entered, nor that he had ever been in any way connected with that building. Under these circumstances we are of opinion that the plaintiff had no right to enter the defendant's building, and that in entering it he was a trespasser. This conclusion does not rest upon the fact that the building was a dwelling, nor that the entrance to it was closed. It was, in fact, a tenement house not occupied by the defendant, but by tenants at will, and the entrance by which the plaintiff gained admission was not only open, but had no door. The plaintiff was a trespasser because his office and his writ gave him no right to enter upon the property of a stranger, unless the person whom the writ directed him to serve with a summons either resided there or was actually in the building. While it is for the public interest that officers charged with the duty of serving civil process should be clothed with such powers as will enable them to comply with their precepts, it yet is not necessary that they should have the right to enter any premises where they may suppose the person to be of whom they are in search; and if, without inducement from the owner or those in occupation, they see fit to enter a building where the person sought does not reside, they are properly held to do so at their peril, and, if he is not in fact there, they enter without right and as trespassers. In this respect their rights and powers are less than those of officers charged with the execution of warrants to arrest alleged criminals or of those whose duty it is to arrest criminals without warrant. In such cases the officer may enter the house of a stranger, and search there for the person named in his warrant, although that person is not there, if the officer has reasonable cause to believe that the person against whom he holds the warrant, or whom it is his duty to arrest without a warrant, is in the house. Com. v. Irwin, 1 Allen, 587; Com. v. Reynolds, 120 Mass. 190; Parker v. Barnard, 135 Mass. 116, 117. But there is a clear distinction, both upon principle and authority, between such cases and those in which officers charged only with the service of civil process invade the premises of strangers, which do not, in fact, shelter those of whom they are in search. In such cases they act at their own risk, and are justified or shown to be trespassers by the event; and such is the current of authority. Thus, in Biscop v. White, Cro.Eliz. 759, trespass was brought for breaking the plaintiff's house. The...
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