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Semayne v Gresham [1604]
Yelverton 29 Facts: Gresham and Beresford were joint tenants of a house in London which Beresford kept his goods. Beresford was indebted to Semayne and judgment was entered against him for the sum due. He soon afterwards died but Gresham continued to occupy the house and Semayne issued execution on his judgment against the goods of Beresford. The sheriff of London came to the house to serve the execution but Gresham shut the door before the sheriff entered and would not allow him access to view and appraise the goods. As a result Semayne sued Gresham for disturbing his execution.
Judgment by Yelverton "The action does not lie; for Gresham has done nothing but what he may lawfully justify, that is shut his own doors. Although the execution had been for the debt of Gresham, yet before the sheriff's entry into the house it had been lawful for him to shut the door for, unless it is upon the Queen's suit, for the contempt of the party, it is not lawful for the sheriff to enter the house unless it is open" Judgment by Fenner "If the sheriff himself might have entered, yet it is not lawful to bring a jury into the house to praise the goods; for it was very inconvenient to have so large a company in a house, and might be prejudicial to the party, by the loss of the goods" Popham J and others disagreed: "because by this means justice is hindered; for execution is the effect of the whole suit; and if execution cannot be made, but is prevented by this means, then it will he in vain to sue; and therefore he conceived the decision in the Year Book case in 18 Ed.II Execution, is better law than 18 Ed.IV and he was of opinion that upon an execution between party and party, the sheriff might enter and break the door" Fenner Justice, "that if the sheriff might by
law in such case break the house, then also clearly
the action does not lie; for then, although Gresham
shut the door of the house, it was the sheriff's
fault that he did not break it:" Judgment was given against the plaintiff by the
whole court.
Seyman v Gresham [1604]
Croke, Elizabeth 908 Facts "Action upon the case; supposing, that one G.
Berisford was indebted unto him for £200 and that
he sued execution, and the sheriffs of London, by
force of that writ, impanelled a jury, to enquire
what goods there were and that there were divers
goods of the said G. Berisford in such a house in
London; and that the sheriff came with the said
jury, to have a view of them, and to appraise and
seize them for this debt; and that the defendant,
praewmissorum non ignarus, shut the door, and
disturbed him to make execution. The defendant
entitles himself to the possession of the house, by
reason of a joint lease made to him and one
Berisford, and that he had it by survivorship; and
that he shut the door for the salvation of his
possession. The plaintiff replies, that the said
Berisford mentioned in the bar, and he who was
obliged in the statute (i.e. the judgment debtor),
were all one person. And it was thereupon
demurred." Judgment, the principal question was, whether
this shutting of the door was a disturbance of the
execution and, whether the plaintiff might
thereupon maintain this action? Whether he might upon a fieri facias enter the house of any to take execution of the goods, and to break the party's house to make execution, they doubted. But if the door be open, there is no doubt but that the sheriff might enter to do execution; for the law gives him authority thereto. And for this cause Gawdy and Popham held, that the action here well lay; because by the shutting of the door the party was disturbed to have his execution. But Fenner and Yelverton disagreed; for the goods being in the defendant's house, who is a stranger to the execution, he is not bound to take conusance of the sheriff's intent, in coming to make execution; and his shutting the door was lawful. And although there were loss to the plaintiff, yet it is damnum sine injuria (damages with no injury). And it appears not by what means that the goods of the conusors, which are in the defendant's house, came thither; and if they were taken by the defendant as a trespasser, the party whose goods they are, or the sheriff upon execution, may come within the house, if the door be open, to seize them, because the defendant had them by unlawful means. But if the defendant had them by lawful means, whether by bailment or otherwise, neither the party himself nor the sheriff can come within the house to seize them; and therefore the shutting of the door is no cause of action for the plaintiff. Therefore the action lieth not. Adjourned. Note, that at a later date this cause was argued again and that Williams agreed with the opinion of Yelverton and Fenner that the sheriff might not break any mans house to take execution, unless in the Queen's case, or for a contempt. Wherefore, according to their opinions, it was adjudged for the defendant."
The creation of common law and bailiffs right of entry Sir Edward Coke made the most detailed version of the Semayne judgment and contained an extended analysis of the right of entry as it developed in 1604 setting the English common law on bailiff's right of entry and little has changed since over the last four centuries. The Semayne case is the origin of the modern phrase A mans house is his castle and this is borne out of Sir Edward Coke's commentary - The house of everyone is to him is his castle and fortress, as well for his defence against injury and violence as for his repose and if thieves come to a man's house to rob or murder, and the owner or his servants kill any of the thieves in defence of himself and his house, it is no felony and he shall lose nothing. This sets the common law rule that forced entry by a bailiff cannot be made into private homes. Where any house is recovered by any possession action, the sheriff may break the house and deliver the seisin or possession. This set the common law rule that a house containing goods already seized then the bailiff can break into the house and recover the goods. In all cases where the King is party, the sheriff may break the house, either to arrest or do other execution of the King's process, if he cannot otherwise enter. But he ought first to signify the cause of his coming, and make a request to open the doors. This is why a collector of taxes for HMRC can break into homes without a warrant, but he must announce his intention first.
-This set the rule that a bailiff can walk into an open or unlocked door of a home.
This sets the rule that if a bailiff with a levy on goods, wants to re-enter to recover them, then he must ask the debtor to open the door before breaking it.
The allegation 'praemisorum non ignarus' (Latin: ' not unaware of the premises ') is not enough and can resist the sheriff as Semayne argued, but the Court felt that the sheriff needed to give clear notice of his purpose. Had he done so, then the defendant may have been less entitled to resist, however the case of Vaughan McKenzie changed this common law rule.
The principle common law points created by Semayne's case are:
See also: Judgment of Semayne's case Coke's version
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