Stearns v. Vincent. 11 Wend. 54; Daniels v. Ball, id. 57 n.; Harker. v. Dement, 9 Gill, 9, 12; Magee v. Scott, 9 Cush. 148; Hubbard v. Lyman, 8 Allen, 520; Burke v. Savage, 13 id. 408; Bartlett v. Hoyt, 29 N. H. 317; Knapp v. Winchester, 11 Vt. 351; Coffin v. Anderson, 4 Blackf. 395; Weymouth v. Chicago, etc., R'y Co., 17 Wis. 550; Carter v. Bennett, 4 Fla. 283, 355; Cook v. Patterson, 35 Ala. 102; Vining v. Baker, 53 Me. 544. Lord CAMPBELL states the rule as follows: "I conceive the law is, that if a person is peaceably and quietly in possession of a chattel as his own property, that a person who takes it from him, having no good title, is a wrong-doer, and that such person cannot defend himself by showing that the chattel is not the property of the plaintiff, but the property of a third person. The law is laid down in the most clear and express terms in the case of Wilbraham v. Snow, 2 Saund. 47, and the notes to that case by the very learned editor, Mr. Sergeant Williams, vouching a number of authorities to show that such is the law of England; and it is most reasonable and most essential to society that it should be so. It is of the greatest importance that a man shall not, having no good title of his own to the property, be allowed to seize it, and thereby probably bring about a breach of the peace and occasion great mischief and confusion. The plaintiff rests on his possession of the property; and the question is whether a person who has no title whatever of his own shall be allowed to show that the plaintiff has not the right of property. The right of property is presumed from the possession; and is that presumption to be rebutted by evidence on the part of the defendant, a mere stranger and wrongdoer, showing that the plaintiff was not the real owner of the chattel? I am of opinion that that cannot be done." Jeffries v. Great Western R'y Co., 5 El. & Bl. 802; s. c., 34 E. L. & Eq. 122, 125. It was probably the doctrine of these cases that the Circuit judge had in mind in his rulings on the trial of this suit. The judge evidently misapprehended these decisions and misapplied them. No such doctrine is found in them as is embraced in the rulings made by him on the admission of evidence. The plaintiff has not in this case recovered on her possession as against a wrong-doer; but the defendant denied her possession and offered to disprove it, and was not permitted to do so. Several times and in different forms he made his proposition to show that the plaintiff had parted with both possession and title, and that such holding as she had at the time of the levy by the defendant was a holding as Stearns v. Vincent. mere agent of her father. If there is any authority anywhere which would preclude this showing, it has not been brought to our attention. We are confident it has never been held in any reported case. The mischief of such a doctrine could have no better illustration than such as the facts of this case would present. If Clark owns the goods in controversy, he may recover of the defendant their full value. If this plaintiff may recover upon such possession as she had, no reason appears why her husband could not recover also. Apparently it would be as easy for him to show possession as for the plaintiff; and it is not to be doubted that he might make a sufficient showing if the defendant was not suffered to cross-examine him upon the facts. Then if there was a clerk in the store, why might not he recover also? Indeed the defendant offered to show that the plaintiff was a mere clerk, but was not suffered to do so, and as it is supposable he might have made the proof if permitted, this judgment cannot be supported without holding that the possession of a clerk is sufficient title to enable him to recover the full value of the goods. And if one clerk may recover on his or her possession, why not several in succession? Surely no such doctrine can have any basis in law or reason. If a party has peaceable possession of property under a claim of title which no other claimant is disputing, there may be good reason why a stranger should not be suffered to disturb the possession without pretense of right in himself. It is not one man's business to assert claims on behalf of another who does not see fit to assert them himself, and the peace of society, as Lord CAMPBELL shows, is best subserved by not suffering strangers to the title to put themselves forward as champions of the rights of others who make no claim, and to justify their own trespasses by showing that some one else, had he been so disposed, might have been justified in a like interference. But it was the possession itself that the defendant took issue upon in this suit, and by the very authorities upon which the plaintiff relied, the right of recovery depended upon it. II. But the judge was equally in error in the view he took of the protection of the dwelling-house. He was mistaken in supposing that the question whether the store was or was not a part of the dwelling-house, was a question of fact, and in submitting it as such to the jury. If the facts were in dispute, they should have been submitted to the jury under proper instructions; but they were not Stearns v. Vincent. in dispute. The unquestioned facts were that the lower story of the building was occupied for a store, and the upper story for a dwelling. The back door was common to the store and the dwelling, but it does not appear that in any other respect was there any joint occupancy. Now upon these facts the judge should have given positive instructions, and he could not leave it to the jury to deduce rules of law from unquestioned facts. That was his business, not theirs. The jury appear to have reached the conclusion that in law the store was a part of the plaintiff's dwelling, and that the entry into it by force was unlawful. Upon this they held the levy void and the defendant responsible for the full value of the goods, notwithstanding he had process to justify his seizing them. There are New York authorities which are thought to support this ruling. Quinn v. People, 71 N. Y. 561; s. c., 27 Am. Rep. 87, is specially relied upon. That was a prosecution for burglary. The building broken into was similar in its occupation to the one occupied by the plaintiff in this case, and the store on the first story was held to be a part of the dwelling-house of the proprietors who lived over it. But to make this case applicable we must be satisfied that the term "dwelling-house" has the same meaning in the law of burglary which it has in the law which regulates the duties of officers in making service of civil process, and we do not find that it has ever been distinctly held that such is the case. In the law of burglary the dwelling-house is deemed to include whatever is within the curtilage, even if not inclosed with the dwelling, if used with it for domestic purposes. People v. Taylor, 2 Mich. 250; Pitcher v. People, 16 id. 142. This construction of the term is for the peace, repose and safety of families in the night time, and it is made to include all those buildings, the forcible breaking of which for felonious purposes during the hours which peaceable and lawabiding citizens give up to rest, would naturally cause alarm, distress and danger. The protection of the dwelling against entry for the service of process is in the outer door only, and it is optional with the owner to take it by closing the door against the officer, or to waive it by allowing him to enter. If the officer once gains entrance through the outer door without force or fraud, the privilege is gone, and he may force open any other door if necessary to make complete service of his process. If therefore the door which was forced by this officer was the outer door of the plaintiff's dwelling, Stearns v. Vincent. the officer, if he had succeeded in entering the store while the door stood open, might lawfully have forced the door to what constituted the dwelling in fact. But nothing seems plainer than that any such application of the principle deprives that which constitutes the dwelling in fact, namely, all that part of the building which is occupied by the family for domestic purposes, of any privilege at all. If the outer door of the store is to be deemed in law the outer door of the dwelling, then when that door is passed the officer for the service of his process may lawfully force his way through any inner door; and through the door which constitutes the entrance to the second story as much as any other. Williams v. Spencer, 5 Johns. 352; Hubbard v. Mace, 17 id. 127. But as the very nature of the business to which the lower story was devoted requires it to be kept open for general access of the public, and a general license is given to everybody to enter for business purposes it is obvious that to treat the outer door of the store as the outer door of the dwelling for the purpose of domestic protection, would be to sacrifice the business to the privilege or to surrender the privilege altogether. If this were a necessity of the situation, it must be submitted to; but all the necessity there is in the case arises from giving to the dwelling a definition which makes it embrace something which in fact is no part of the dwelling at all. The moment we limit the application of the term "dwelling-house" to that which is occupied by the family for dwelling purposes, and treat the remainder as being what it is in fact, namely, a shop devoted exclusively for business purposes, all difficulty disappears, and it becomes easy to give the householder his privilege, without depriving the officer of any right in respect to the shop which he would have if what to the business is the unimportant circumstance that the owner lived under the same roof instead of elsewhere did not exist. The officer by following a customer into the store would not then acquire a right to force his way into the dwelling, and the householder by taking up his residence over the store would not acquire the right to close his place of business against legal process a right which others do not have and which no principle of the common law was intended to confer. The privilege is thus preserved and absurd consequences avoided. The opposite conclusion would sacrifice both the privilege and the principle to a mere definition. In Swain v. Mizner, 8 Gray, 182, it was decided that when a building is leased in distinct portions to several tenants, the door to People v. Reilly. the occupation of each tenant is to be deemed the outer door of his dwelling-house, and that an officer, though he may be lawfully within the building, has no right to force such door for the service of process. The principle is applicable here. The outer door of the plaintiff's dwelling was the door into the part of the building occupied for domestic purposes, and it was behind that she must claim her protection, and not behind the door of the store. It does not appear by the record to have been claimed that the officer's entry into the store was unlawful, provided the store was not within the protection of the dwelling. He offered to prove that he demanded admittance before forcing his way in. As the attempt by the defendant to show the nature of the plaintiff's possession was first made by cross-examination of the plaintiff herself, and was excluded as not being proper cross-examination, attention is called to the repeated decisions of this court which show beyond question that the attempted cross-examination was entirely within the limits of the party's right. Chandler v. Allison, 10 Mich. 460; Dann v. Cudney, 13 id. 239; Detroit & Milwaukee Railroad Co. v. Van Sternburg, 17 id. 99. The judgment must be reversed with costs, and a new trial awarded. Judgment reversed. GRAVES, C. J., and MARSTON, J., concurred. ONVICTION of pool-selling. The opinion states the case. CONVI John B. Corliss, city attorney, Henry M. Duffield, city counsellor, for people. F. A. Baker, for respondent. But a pool-room is a “gaming room." People v. Weithoff, Mich. Sup. Ct., July, 1883. |