Gardner v. Neil, 4 N.C. 492, 1 Car. L. Rep. 492 (1814)

April 1814 · Supreme Court of North Carolina

4 N.C. 492, 1 Car. L. Rep. 492

Gardner v. Neil.

This was an action of trespass vi et armis, for entering and searching the plaintiff’s house, under the pretence of looking for a runaway slave. The defendant justified, under a warrant, and it appeared in evidence, that the slave was not found in the plaintiff’s house. The warrant was set forth in the record, and it’s legality submitted to the consideration of the Court; but the only question decided was as to the form of action.

Cameron, J.

delivered the opinion of the Court.

Every entry by one, into the dwelling-house of another, against the will of the occupant, is a trespass, unless warranted by such authority in law as will justify the entry. And the action of trespass is the only proper form of action which the party complaining can legally maintain in such case.

Whether the warrant under and by virtue of which the defendants justify their entry, into the dwelling-house of the plaintiff, will amount to a complete justification, or not, depends on facts not now before the Court.

As the Court is of opinion that the form of the action is proper, it is unnecessary to decide the second question stated in the case sent up.

Rule made absolute, and new trial granted.