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• Acknowledgments and Dedicatory
• A Note On the Texts, Editions, and Translations
• Introduction
• Chronology of Events
• Editions of Coke’s Works
• Mottoes and Crests of Sir Edward Coke
• I: Reports
• Part One of the Reports
• The Preface to the Reader.
• Shelley’s Case.
• Part Two of the Reports
• (preface) to the Learned Reader.
• Manser’s Case.
• The Case of Bankrupts.
• |[46 A] the Archbishop of Canterbury’s Case. *
• Part Three of the Reports
• (preface) to the Reader.
• Heydon’s Case.
• Fermor’s Case.
• Part Four of the Reports
• (preface) to the Reader.
• The Lord Cromwell’s Case. *
• Cutler V. Dixon.
• Vaux’s Case.
• Slade’s Case.
• Part Five of the Reports
• (preface) to the Reader.
• Foster’s Case.
• Cases of By-laws and Ordinances the Chamberlain of London’s Case.
• Clark’s Case.
• The Case of Market-overt.
• Semayne’s Case.
• Rooke’s Case.
• Pinnel’s Case.
• |[125 A] the Case De Libellis Famosis.
• Part Six of the Reports
• (preface) to the Reader.
• Jentleman’s Case.
• Part Seven of the Reports
• (preface) Deo, Patriae, Tibi. 2
• Calvin’s Case, Or the Case of the Postnati. 1
• The Case of Swans.
• Penal Statutes.
• Part Eight of the Reports
• (preface) Deo, Patriae, Tibi. 3
• Vynior’s Case. *
• Dr. Bonham’s Case.
• The Case of Thetford School, &c.
• Part Nine of the Reports
• (preface) Deo, Patriae, Tibi. 3
• William Aldred’s Case.
• John Lamb’s Case.
• Mackalley’s Case. (in the Killing of the Sergeant of London.)
• Part Ten of the Reports
• (preface) Deo, Patriae, Tibi. 5
• The Case of Sutton’s Hospital.
• The Case of the Isle of Ely.
• Part Eleven of the Reports
• (preface) Deo, Patriae, Tibi. 4
• The Lord De La Warre’s Case.
• The Case of the Tailors of Habits &c. of Ipswich.
• The Case of Monopolies.
• James Bagg’s Case.
• Part Twelve of the Reports
• Ford and Sheldon’s Case.
• Case of Non Obstante, Or Dispensing Power.
• Q. If High Commissioners Have Power to Imprison.
• Floyd and Barker.
• Of Oaths Before an Ecclesiasticall Judge Ex Officio.
• Of Pardons.
• Customs, Subsidies, and Impositions.
• Buggery. 1
• Premunire.
• Nicholas Fuller’s Case.
• Sir Anthony Roper’s Case.
• Sir Anthony Roper’s Case.
• The Case of Heresy.
• Langdale’s Case.
• Mouse’s Case.
• Prohibitions Del Roy.
• The Lord Aburgaveney’s Case.
• Of Convocations.
• Proclamations.
• Thomlinson’s Case.
• Walter Chute’s Case.
• Sir Stephen Procter’s [proctor’s] Case.
• Exaction of Benevolence.
• Part Thirteen of the Reports
• (preface) to the Reader.
• Prohibitions.
• The Case De Modo Decimandi, 1 and of Prohibitions, Debated Before the Kings Majesty.

Semayne’s Case.

(1604) Michaelmas Term, 2 James 1 In the Court of King’s Bench.

First Published in the Reports, volume 5, page 91a.

Ed.: Peter Semayne held a house in common with George Beriford, who died, leaving his goods in the house. Semayne also held a statute-staple, a type of bond securing a debt from Beriford. Semayne sought a writ to secure Beriford’s lands and goods in payment of the debt. He gave the writ to the sheriffs of London, who began forfeiture proceedings against Richard Gresham, who had succeeded to Beriford’s interests at the time of Beriford’s death. The sheriffs offered to enter Gresham’s house to seize the goods, which Gresham opposed. In this famous case, the King’s Bench described the privileges of a house owner, who may defend it as his castle and greatest refuge. He even has rights against entry and search by the King’s sheriffs, who may break into a house to make an arrest or serve a warrant but who might commit a trespass if they break in when they do not need. The standards of entry by sheriffs are also discussed. Semayne lost because in this non-felony case, Gresham was legally allowed to bar his own door.

In an Action on the Case by Peter Semayne, Plaintiff, and Richard Gresham, Defendant, the Case was such; The Plaintiff and one George Berisford were Joynt-tenants of a house in Black Friars in London for years. George Berisford acknowledged a Recognizance in the nature of a Statute-Staple to the Plaintiff, and being possessed of divers goods in the said house, died, by which the Defendant was possessed of the house by survivorship, in which the goods continued and remained; The Plaintiff sued process of extent upon the Statute to the Sheriffs of London; The Sheriffs returned the conusor dead, uponwhich the Plaintiff had another Writ to extend all the lands which he had at the time of the Statute acknowledged, or any time after, and all his goods which he had at the day of his death; which Writ the Plaintiff delivered to the Sheriffs of London, and told them that divers goods which were the said George Berisford’s goods at the time of his death were in the said house: And thereupon the Sheriffs by virtue of the said Writ, charged a Jury to make enquiry according to the said writ, and the Sheriff and Jury accesserunt ad domum praedictam ostio domus praedict’ aperto existen’ et bonis praedictis in praedicta domo tunc existen’,1 and they offered to enter the said house, to extend the |[91 b] said goods according to the said Writ; And the Defendant, praemissorum non ignarus,2 intending to disturb the execution, ostio proed’ domus tunc aperto existen’, claudebat contra Vicecom’ & jurator’ praed,’3 by which they could not enter, and extend the said goods, nor the Sheriff seize them, by which he lost the benefit and profit of his Writ: And in this Case these points were resolved.

1. That the house of every one is to him as his Castle and Fortress as well for defence against injury and violence, as for his repose; and although the life of man is precious and favoured in law; so that although a man kill another in his defence, or kill one per infortuntun’,4 without any intent, yet it is felony, and in such case he shall forfeit his goods and chattels, for the great regard which the law hath of a mans life; But if theeves come to a mans house to rob him, or murder, and the owner or his servants kill any of the theeves in defence of himself and his house, it is no felony, and he shall lose nothing, and therewith agreeth 3 Edw. 3. Coron. 303, & 305. & 26 Ass. pl. 23. So it is holden in 21 Hen. 7. 39. every one may assemble his friends or neighbours to defend his house against violence: But he cannot assemble them to goe with him to the Market or elsewhere to keep him from violence: And the reason of all the same is, because domus sua cuique est tutissimum refugium.5

2. It was resolved, that when any house is recovered by any real Action, or by Ejectione firmae,6 the Sheriff may break the house to deliver possession to the demandent or Plaintiff for the words of the Writ are, Habere facias seisinam,7 or possessionem, &c.8 and after Judgment 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 parties house, either to arrest him, or to doe execution of the Kings process, if otherwise he cannot enter. But before he break it, he ought to signify the cause of his coming, and to make request to open doors; and that appeareth by the Statute of Westm. 1. c. 17. (which is but an affirmance of the Common Law) as it hereafter appeareth, for the Law without default in the owner abhorre destruction or breaking of any house which is for the habitation and safety of a man, by which great damage and inconvenience may follow to the party, when no default is in him; for perhaps he doth not know of the process, which, if he had notice of it is presumed that he will obey it, and that appeareth in 18 Edw. 2. Execut. 252 where it is said, That the Kings Officer who cometh to doe execution, &c. may open the doors which are shut, and break them, if he may not have the keys; which proveth, that he ought first to demand them: 17 Edw. 3. 16. J. hurteth R. so as he is in danger of death, J. flieth, and thereupon Hue and Cry is made, J. getteth into the house of T. those who pursue him, if the house be kept and defended with force (which proveth that first request ought |[92 a] to be made) may lawfully break the house of T. for it is at the Kings suit. 27 Ass. p. 66. The Kings Bailiff may distrain for issues in a Sanctuary, 27 (28) Ass. p. 35. By force of a capias9 upon indictment of Trespass the Sheriff may break his house to arrest the party; but in such Case, if he break the house when he may enter without breaking it, (that is, on request, or if he may open the door without breaking) he is a trespasser, 41 Ass. 17. upon issue joyned on a traverse of an Office in Chancery, Venire facias10 was awarded returnable in the Kings Bench, without mentioning non omittas propter aliquam libertatem;11 yet for as much as the King is party, the Writ of itself is non omittas propter aliquam libertatem, 9 Edw. 4. 9. That for felony, or suspicion of felony, the Kings 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 felons. 2. In every felony the King hath interest, and where the King hath interest there the Writ is non omittas propter aliquam libertatem; and so the liberty orprivilege of the 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; and so may the Lord in such case enter the house to distrain for his rent, or service, 38 Hen. 6. 26. a. 8 Edw. 2. Distr. 21 & 33 Edw. 3. Avow. 256. the Lord may distrain in the house, although he holds lands in which he may distrain. Vide 29 As. 49. But the great question in this Case was, if by force of a Capias or Fieri Facias12 at the suit of the party the Sheriff after request made to open the door, and denial made, may break the Defendants house to doe execution if the door be not opened. And it was objected, That the Sheriff had well do it for divers causes: 1. Because it is by process of Law; and it was said, That it would be granted that a house is not a liberty, for if a Fieri fac. or a Capias be awarded to the Sheriff at the suit of a common person, and that he make a mandate to the Baily of a liberty who hath return of Writs, that nullum dedit responsum13 in this Case another Writ shall issue with non omittas propter aliquam libertatem yet (it will be said on the other side) that he shall not break the defendants house, as he shall doe of another liberty; As in the county of Suffolk there are two liberties, one of S. Edmund Bury, and the other of S. Etheldred of Ely, put case a Capias comes at the suit of A., to the Sheriff of Suffolk to arrest the body of B. the Sheriff maketh a mandate to the Bailiff of the liberty of S. Etheldred, who maketh no answer, in this Case the Plaintiff shall have a Writ of non omittas by force at which he may arrest the Defendant within the liberty of Bury, although that no fault be in him: 2. Admit it be a liberty, the Defendant himself shall not take advantage of a liberty: As |[92 b] if the Bailiff of a liberty be Defendant in any Action, and process of Capias or Fieri facis come to the Sheriff against him, the Sheriff shall execute the process against him, for a liberty is always for the benefit of a stranger to the Action. 3. For necessity the Sheriff shall break the Defendants house after a denial as is aforesaid, for at the Common Law a man shall not have any execution for debt, but only of the Defendants goods. Put case then the Defendant will keep all his goods in his house, and so the Defendant by his own act shall prevent not onely the Plaintiff of his just and true debt, but it shall be also a great imputation to the Law, that there should be so great defect in it, that in such Case the Plaintiff by such shift without any default in him should be barred of his execution. And the Book in 18 Edw. 2. Execute 252. was cited to prove it, where it is said That it is not lawful for any one to disturb the execution of the Kings Officer, who cometh to execute the Kings process; for if a man might stand out in such manner, a man shall never have execution; but there it appeareth (as hath been said) that there ought to be request made before the Sheriff break the house. 4. It was said, that the Sheriff is an Officer of great authority, in whom the law reposeth great trust and confidence, and are of sufficiency to answer all wrongs which shall be done; And they have custodiam Comitatus,14 and therefore it shall not be presumed that they will abuse the house of any one by colour of doing their office in execution of the Kings Writs, against the duty of their office, and their Oath also: But it was resolved, That it is not lawful for the Sheriff (upon request made and denial) at the suit of a common person, to break the Defendants house scil. to execute any process at the suit of any Subject, for thereof would follow great inconvenience that men in the night as in the day should have their houses (which are their Castles) broken by force of which great damage and mischief may follow, for by colour thereof, upon a feigned suit, the house of any man at any time might be broken when the Defendant might be arrested elsewhere, and so men should not be in safety or rest in quiet in their own houses: And although the Sheriff be an Officer of great authority, and trust, yet it appeareth by experience, that the Kings Writs are executed by Bailiffs, persons of little or no value: And it is not to be presumed, that all the substance a man hath is in his house, nor that a man will lose his liberty, which is so inestimable, if he hath sufficient to satisfy his debt. And all the said Books, which prove, that when the process toucheth the King, that the Sheriff may break the house, implies that at the suit of the party, the house may not be broken, otherwise the addition (at the suit of the King) should be vain and frivolous. And with this Resolution agreeth the Book in 9 (13) E. 4. 9. and the express difference there appeareth between the Case of felony, which (as hath been said) concerneth the Commonwealth, and the suit |[93 a] of any other subject, which is for the particular interest of the party, as there it is said in 18 El. 4. 4. a. by Littleton and all his Companions it is resolved, That the Sheriff cannot break the Defendants house by force of a Fieri Facias,15 but he shall be a trespasser by the breaking, and yet the execution which he then doth in the house is good. And it was said, that the said book of 18 Edw. 2. was but a Nota, and not any judicial Judgment, and it doth not appear at whose suit the Case is intended, but it is an observation or collection (as it seemeth) of the Reporter. And if it be of a Quo minus16 or other Action in which the King is party, or is to have benefit, the Book is good Law.

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 flieth 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 onely to him and his family, and to his own proper goods, or to those which are lawfully and without fraud or covin there; And therefore in such Cases after denial upon request made, the Sheriff may break the house; and that is proved by the Statute of West. 1. c. 17. by which it is declared, That the Sheriff may break a house or Castle to make Replevin, when the goods of another which he hath distrained are by him conveyed to his house or Castle, to prevent the owner to have a Replevin of his goods; which Act is but an affirmance of the Common Law in such points. But it appeareth there, that before the Sheriff in such Case break the house, that he is to require the goods to be delivered to him; for the words of the Statute are, After that the castle shall be solemnly demanded by the Sheriffs &c.

6. It was resolved, admitting that the Sheriff after denial made may break the house, as the Plaintiffs Councel pretend he may, then it followeth that he hath not done his duty, for it doth not appear, that he made any request to open the door of the house. Also the Defendant, as this Case is, hath done that which he may well doe by the Law, scil. to shut the door of his own house.

Lastly, the general allegation, praemissorum non ignarus,17 was not sufficient in this Case where the notice of the premises is so material; but in this cause it ought have been certainly, and directly alledged, for without notice of the process of the Law, and of the coming of the Sheriff with the Jury to execute it, the shutting of the door of his own house was lawful. And Judgment was given against the Plaintiff.

[1. ][Ed.: went to the aforesaid house, the door of the aforesaid house being open, and the aforesaid goods then being in the aforesaid house,]

[2. ][Ed.: being not unaware of the foregoing,]

[3. ][Ed.: the door of the aforesaid house then being open, closed [the door] against the sheriff and jurors aforesaid.]

[4. ][Ed.: by misfortune.]

[5. ][Ed.: everyone’s house is his safest refuge (“Every man’s home is his castle.”)]

[6. ][Ed.: Writ of ejectment, or removal from land.]

[7. ][Ed.: cause [the plaintiff] to have seisin.]

[8. ][Ed.: [cause the plaintiff to have] possession etc.]

[9. ][Ed.: Writ of capias; a predeccessor to the arrest warrant.]

[10. ][Ed.: Writ acting as a summons to appear.]

[11. ][Ed.: do not omit on account of any liberty.]

[12. ][Ed.: Writ of execution for collection of a debt (literally, “that you cause to be made.”).]

[13. ][Ed.: gave no answer.]

[14. ][Ed.: custody of the county.]

[15. ][Ed.: Writ to execute a judgment.]

[16. ][Ed.: Writ brought against delinquent debtor of the King (literally, “by which the less.”).]

[17. ][Ed.: being not unaware of the foregoing.]