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the end of the summer before the offence was committed, he removed with his whole family to London, and brought away a considerable part of his goods; and that in the November following his house was broken open, and in part rifled; upon which he removed the remainder of his household furniture, except a clock, and a few old bedsteads, and some lumber of very little value; leaving no bed or kitchen furniture, nor any thing else for the accommodation of a family. Being asked whether, at the time he so disfurnished his house, he had any intention of returning to reside there, he declared that he had not come to any settled resolution, whether to return or not; but was rather inclined totally to quit the house, and to let it for the remainder of his term. The facts charged were sufficiently proved against the prisoners; but the court were of opinion that the prosecutor having left his house, and disfurnished it in the manner before mentioned, without any settled resolution of returning, but rather inclining to the contrary, the house could not, under these circumstances, be deemed his dwelling-house at the time the fact was committed; and accordingly directed the jury to acquit the prisoners of the burglary: which they did, but found them guilty of felony, in stealing the clock, &c. (p)

a warehouse.

House inhabited by a ser

vant and his

family.

So, if a man leaves his house without any intent of living in it House used as again, and means to use it as a warehouse only, and has persons, not of his family, to sleep in it to guard the property, the house cannot be described as his dwelling-house. One Cox lived in St. Martin's-lane, but removed to the Haymarket, and kept the house in St. Martin's-lane as a warehouse only; none of his family or servants remained there, but two women who worked for him in his business slept there to guard the property; the prisoner stole to the amount of above forty-shillings in the house, and was convicted upon an indictment against him describing the house as the dwelling-house of Cox; but upon a case reserved, the Judges held, that the conviction was wrong. (9) But though a man leave his house, and never mean to live in it again, yet if he uses part of it as a shop, and lets a servant and his family live and sleep in another part of it for fear the place should be robbed, and lets the rest to lodgers, the habitation by the servant and his family is a habitation by the owner, and the shop will still be considered part of his dwelling-house. The indictment was for burglary in the dwelling-house of Bendall, the place broken into was a shop. parcel of a dwelling-house, which he had inhabited. He had left the dwelling-house, and never meant to live in it again, but retained the shop, and let the other rooms to lodgers after some time he had put a servant and his family into two of the rooms, lest the place should be robbed, and they lived there. Upon a case reserved, the Judges thought putting in a servant and family to live, very different from putting them in merely to sleep, and that this was still to be deemed Bendall's house, and that the conviction was right. (r)

It seems that the mere casual use of a tenement as a lodging, Inhabitancy, merely casual,

(p) Nutbrown's (John and Miles)

case, Fost. 76, 77.

(q) Rex, Flannegan, Mich. T.

1810. Russ. & Ry. 187.
(r) Rex v. Gibbons, East. T. 1821.
MS. Bayley, J

or for some particular

purpose, will

not be sufficient.

Qu. as to the case of an executor putting servants into

the house of his testator,

but not going

to live there himself.

Of the ownership of the mansionhouse.

Ownership,

where the oc

cupation is by

or the using it only upon some particular occasions, will not be such an inhabitancy as will constitute it a dwelling-house in which burglary can be committed. (s) Thus, it was agreed by all the judges, that the fact of a servant having slept in a barn, on the night in which it was broken open, and for several nights before, he being put there for the purpose of watching thieves, made no sort of difference in the question, whather the offence was burglary or not. (t) And the circumstance of a porter lying in a warehouse, to watch goods, which is only for a particular purpose, does not make it a dwelling-house. (u) The question, therefore, respecting burglary in such barn or warehouse will remain just as if no person had slept in them, to be disposed of by the principles which have been before discussed, as to their being or not being parcel of the mansion or dwelling-house. (x)

A point of some nicety arises in the case of an executor putting servants into the house of his testator, but not going to live there himself. A case of this kind occurred, which is thus stated. A. died in his house, and B. his executor put servants into it, who lodged in it, and were on board wages; but B. never lodged there himself and upon an indictment for burglary, the question was, whether this might be called the mansion-house of B. The court inclined to think it might, because the servants lived there. (y) It was not necessary to decide the point in that case, as it turned out on the evidence that there was not a sufficient breaking of the house; and perhaps it would be difficult to reconcile the opinion to which the court is said to have inclined with some of the decided cases and principles upon this subject if the facts were that the executor did not contemplate any occupation of the house by himself, and that he merely put the servants there for the purpose of taking care of the house and furniture, till they should be properly disposed of according to his trust. (≈)

It remains further, in treating of the mansion or dwellinghouse, to enquire as to the person who is to be deemed the owner of it, in order to be able to state correctly in the indictment the name of the party in whose dwelling-house the burglary is alleged to have been committed.

This subject is rather of a complicated nature: but, from the cases which have been hitherto decided, it seems that the material point to be ascertained will be, whether the ownership remains with the proper owner of the dwelling-house, and is exercised by him, either by his own occupation, or by that of other persons on his account, or whether the proper owner has given such an interest to other persons, in the whole or in parts of the dwelling-house, as to constitute an ownership in such other persons.

The owner of a dwelling-house may exercise his ownership by his own personal occupation, or by the occupation of any persons

(s) 2 East. P. C. c. 15. s. 11. p. 497. (1) Brown's case, 2 East. P. C. c. 15. s. 11. p. 497. and s. 14. p. 502.

(u) Smith's case, M. 3 G. 1. by ten of the Judges cited from Lord King's MS. 96. and Serjeant Foster's MS. in 2 East. P. C. c. 15. s. 11. p. 497.

(x) Ante, 13, et sequ.

(y) Jones and Longman (case of) O. B. 1689, from Chapple's MS, 2 MS. Sum. 305, cited in 2 East. P. C. c. 15. s. 12. p. 499.

(~) See Davies's case, ante, 17.

owner's fa

husband.

who by law are deemed to be part of his family. This doctrine persons who has been carried to a great extent in the case of a wife. For are part of the where it appeared that a lady, whose house was robbed, had for mily. many years lived separate from her husband; and that, when she Wife living was about to take the house, a lease of it was prepared in her apart from her husband's name, but that he refused to execute, and said he would have nothing to do with it, in consequence of which she agreed with the landlord herself, and had constantly paid the rent; it was holden upon an indictment for breaking open the house that it was well laid as the dwelling-house of the husband. (a) So where a married woman lived apart from her husband, upon an income arising from property vested in trustees for her separate use, it was held, that a house which she had hired to live in might be described as her husband's dwellinghouse, though she paid the rent out of her separate property, and the husband had never been in it. The indictment described the dwelling-house first as the house of J. S., and secondly as the house of his wife. It appeared that they lived apart, and that the wife subsisted upon property which had been hers before marriage, and which was vested in trustees for her separate use; that the house was no part of the settled property, but was hired by the wife who paid the rent for it, and the husband had never been in it. Upon a case reserved, the Judges were clear that this was to be deemed in law the dwelling-house of the husband: it was the dwelling-house of some one: it was not that of the trustees, for they had nothing to do with it, it was not the wife's, because, at law, she could have no property; it could then only be the husband's. (b) In a later case it was held, that the house of a husband in which he allowed his wife to live separate from him might be described as the house of the husband, though the wife lived there in adultery with another man who paid the housekeeping expences; and though the husband suspected a criminal intercourse between his wife and the other man, when he allowed her to live separate. The indictment was for burglary in the dwelling-house of Gillings, who did not live there, but the house was his for a long term, and he suffered his wife to live there separate from him. He had agreed to the separation, and had given her up the house, because he suspected a criminal intercourse between her and one Websdale, and had allowed her also to take a bed, and what furniture she chose. She lived there with Websdale, who paid the housekeeping expences, but neither rent or taxes. Upon a case reserved, the Judges thought that this was properly described as the house of Gillings, and that the conviction was right. (c) But if a case should arise in which the law would adjudge the separate property of the mansion to be in the wife, she having also the exclusive possession, it should seem that in such case the burglary would properly be laid to be committed in her mansion-house, and not in that of her husband. (d)

The owner of a dwelling-house may also occupy it by means of Ownership,

(a) Farre's case, Kel. 43, 44, 45. (b) Rex v. French, Mich. T. 1822. Russ. & Ry. 491.

(c) Rex v. Wilford and Nibbs, Trin.

T. 1823. Russ. & Ry. 517.

(d) 2 East. P. C. c. 15. s. 16. p. 504.

where the oc

means of the servants of the owner.

cupation is by servants. Thus, in a case which has been already mentioned, where the servant of a farmer, and his family, lived in a cottage adjoining his master's house, which he took to by agreement with his master, when he went into the service, but for which he paid no rent; only an abatement was made in his wages, on account of his family being to reside in the cottage; all the Judges (with the exception of Buller, J., who doubted) held that this was no more than a licence to the servant to lodge in the cottage, and not a letting of it to him; and that the cottage, therefore, continued part of the mansion-house of the farmer. (e)

Case of Stockton and Edwards. Where

the servant of three partners

in trade had weekly wages, and some

rooms assign

ed to him for a lodging over the bank and

brewery office

of the partners, with which his lodging com

municated by and a ladder,

a trap-door

it was holden that a burglary

committed in

the banking

room was well

laid as in the dwellinghouse of the

A modern casc appears to have proceeded upon the same principle. The prisoners were indicted for a burglary in the dwellinghouse of Messrs. Moore, Harrison, and Hamilton; and being convicted, received sentence of death: but execution was respited, in order that the opinion of the judges might be taken upon the following facts. Messrs. Moore, Harrison, and Hamilton, the prosecutors, were partners in their business of bankers, and also in a brewery concern; and were the owners of the house in question. The lower rooms of the house were three in number, having only one entrance from without, by a door opening to the street; which was the door broken open to commit the felony. It opened into one of the three rooms in which the clerk's business relating to the brewery was transacted: that room communicated by a door-way with an inner room where the banking business was done, and where the cash, notes, &c. were deposited: and the inner room communicated in the same manner with a further room, which was the private room of the partners. And the business of Messrs. Moore and Co. was transacted only in these lower rooms of the house, in which no person slept. When the entrance door which opened to the street was locked up at night, upon leaving the offices, the clerk who had the custody of the three partners. key left it in the care of one John Stevenson, who inhabited the upper rooms of the house, from whom it was received again, when the offices were to be opened in the morning. This John Stevenson was a servant to Messrs. Moore and Co. in their brewery business, as their cooper, at weekly wages, with firing and lodging for himself and his family: but the contract as to the lodging was not, in general terms, that he should be provided with lodging, but that he should have the particular rooms which he inhabited for the lodging of himself and his family. There was a separate entrance to these rooms from without; they were not in any way used for the business which was carried on in the lower rooms, some papers only of no consequence being kept in them by Messrs. Moore and Co.; and the only communication between the upper rooms and the lower ones was by a trap-door in the floor of one of the upper rooms and a ladder. Since the robbery, this trapdoor and ladder had been constantly used, in order to go down to the lower rooms and bolt the street door of the offices in the inside, for better security; but none of the witnesses knew of their having ever been used for any purpose previous to the robbery, although they might have been so used at any time, as the trap

(e) Brown's case, Newcastle Sum. Ass. 1787, cor. Wilson, J., 2 East. P. C.

c. 15. s. 14. p. 501, 502. And see Bertie v. Beaumont, 16 East. 33.

door was never kept locked or fastened, and the key of it was left in Stevenson's custody. There were six windows in the upper rooms which were assessed in the name of Stevenson; but the duty was paid by Messrs. Moore and Co. The lower rooms had nine windows, but were not charged with any window tax, the assessors not considering them as inhabited. Upon these facts, two questions were submitted: first, whether this inhabitancy could be considered as the inhabitancy of Messrs. Moore and Co. by their servant Stevenson, or whether Stevenson, by the contract, became tenant, and the upper part of the house was his dwelling-house, and not that of Messrs. Moore and Co.; and, secondly, if these premises were the dwelling-house of Messrs. Moore and Co., the further question arose, whether there was such a severance of the lower part as to prevent its being included as part of their dwelling-house.

66

66

66

66

66

After hearing the argument on behalf of the prisoners, Lord Ellenborough, C. J. said, "Could Stevenson have maintained trespass against his employers for entering these rooms? or if a "man assigns to his coachman the rooms over his stable, does he thereby make him a tenant? Whether the assessors formed a right or a wrong judgment, can make no difference: nor is it material to which trade Stevenson was a servant, for the property in both partnerships belonged to the same persons. As "to the severance, the key of the trap door was left with Steven66 son, and the door was never fastened; and it can make no dif"ference, whether the communication between the rooms was through a trap door, or by a common staircase." And Mansfield, C. J. also said, "Many persons have houses given them to "live in, as porters at parkgates: if a master turns away his ser66 vant, does it follow that he cannot evict him till the end of the year? Could not the prosecutors have turned out this man when "they would?" (f)

palaces, no

the houses of

pany.

The same rule, of the occupation of the servant being that of Ownership of the master, will hold with respect to all persons standing in the apartments in relation of servants, and not having the exclusive possession, nor blemen's paying rent. Therefore, apartments in the king's palaces, or in houses, or in the houses of noblemen, for their stewards and chief servants, must a public combe laid as the mansion-house of the king or nobleman. (g) Accordingly, where three persons were charged with having broken into the lodgings of Sir H. Hungate, at Whitehall, it was agreed that the indictment should be for breaking the King's mansion, called Whitehall. (h) So, where a man was indicted for breaking into a chamber in Somerset-house, and the indictment charged it

(f) Rex v. Stockton and Edwards, 2 Taunt. 339. 2 Leach 1015. The case was reserved by Chambre, J., at Carlisle, and was considered in Mich. T.1810. Eight of the judges thought that Stevenson was not tenant, but inhabited only in the course of his service. Thomson, B., Graham, B., Lawrence, J., and Chambre, J., contra. S. C. under the name of Rex v. John

Stock and another in Russ. & Ry. 185.
The judges did not afterwards pro-
nounce any further opinion; but the
prisoners were executed according to
their sentence.

(g) 1 Hale 556, 557. 2 East. P. C.
c. 15. s. 14. p. 500.

(h) Rex v. Williams and others, I Hale 522.

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