This is an action of trespass guare clausum against Richards, who relies upon a justification under legal process, as constable of the town of East Livermore; and against Millett, who justifies as the aid of Richards.
There are no exceptions on the part of the plaintiffs to the ruling of the presiding Judge in admitting the records of the town as amended, to prove the election of Richards as constable; or to the sufficiency of the process under which he acted, in entering the depot of the plaintiffs and seizing the liquors named in the writ.
The Judge substantially instructed the jury, that the defendants, although they had a warrant to them directed to search the depot of the plaintiffs, had no right with force to break it open and enter it, and carry away the liquors in the absence of the person having charge or care of the depot, unless they had obtained or asked permission to enter and search it, and the same had been refused. There is a qualification in the first part of the instructions, to wit, “ unless such forcible entry was necessary to enable them to execute the warrant,” but in the latter part, the instructions are without qualification. The Judge said “he had no hesitation in instructing the jury, that if the defendants broke and entered the depot after it had been closed and fastened for the night and left by the depot-master, without any notice or request to him, or to some person having the care of it, and took *238the liquors sued for therefrom, that such proceeding was wholly unjustifiable, and that the search warrant, under which they professed to act, afforded them no protection, and that a search commenced and conducted under such circumstances was unreasonable and illegal.
It was proved by the plaintiffs, that, after the depot-master had left the depot for the night and just before sun-down, the defendants went to the depot with a cart and oxen; that they, finding it fastened, run a bar of iron through a hole in the window pane and removed the hasp of the outer door by which it was fastened, opened the door, went in and removed the liquor and carried it away.
The defendants were acting under a warrant duly issued by a competent magistrate, commanding them, in the usual form, to search said depot and freight house for said liquor, and seize the same, and have it to await the order of the Court. This was a criminal prosecution. It was not a dwellinghouse which was to be searched. The search was to be made forthwith in the day time. It was not a case where the officer had made the complaint and procured the process by his own oath. There was no person in the depot, or around it, at the time of its entry by the officer, from whom he could have demanded admission. These are circumstances which distinguish it essentially from the cases cited by the counsel for the plaintiffs.
The case of Ratcliffe v. Burton, 3 Bos. & Pul. 222, was one where the justification was attempted under a civil process.
Lord Alvanley, C. J.,said, “ I desire to be considered as confining these observations to the case of civil process only, without in any degree extending them to the case of criminal process.”
Rooke, J.,makes the same limitation to his remarks. It is laid down in 2 Hale, P. C. 151, that “ upon a search for stolen goods, if the goods be not in the house, yet the officer is excused, because he searcheth by the warrant,” but it seems the party that made the suggestion is punishable in such case; *239“ for as to him, the breaking of the door is in eventu lawful or unlawful, viz., lawful if the goods are there, unlawful if not there.”
We are of opinion that the instructions of the presiding Judge, as above stated, were erroneous.
The case finds that the casks and vessels in which said liquors were contained were not “ plainly and conspicuously marked with the name of the town, and of its agent,” and were therefore not protected against seizure and forfeiture ; and for this reason, we are of opinion the Judge erred in his instructions to the jury as to the measure of damages.
Exceptions sustained; — Verdict set aside;— and new trial granted.
Tenney, C. J., and Rice, Hathaway, and Cutting, J. J., concurred.