Ann Hawkins's case. Ownership in servants. to be the mansion-house of the person who lodged in it, it was agreed that the whole house belonged to the queen-mother, and therefore that the indictment was bad. (i) And where a house at Chelsea was broken into, which was used for an office under government, called the Invalid Office, and the rent and taxes of which were paid by government; it was holden that the indictment was defective in laying it to be the house of a person who occupied the the whole of the upper part of it. (k) An indictment also for a burglary in the dwelling-house of the East India Company was holden to be good, the house being inhabited by the servants of that company. (1) And where an indictment charged a burglary in breaking into the mansion-house of the master, fellows, and scholars of Bennet College, in Cambridge; the fact being that the prisoner broke into the buttery of the college; all the judges, upon reference to them, held that it was burglary. (m) The following case also appears to have proceeded upon the same principle, that burglary in the apartments of officers of a public company must be laid as committed in the mansion-house of the company. The prisoner was indicted for breaking the mansionhouse of Samuel Story, in the night-time. It appeared on the evidence that the house belonged to the African Company; that Story was an officer of the company; that he and many other persons, as officers of the company, had separate apartments in the house, in which they inhabited and lodged; and that the apartment of Story was that which was broken open. It was holden that the apartment of Story could not be called his mansion-house, because he and the others inhabited the house merely as officers and servants of the company. (n) But the rule does not apply where a servant lives in a house of his master's at a yearly rent; and such house cannot be described as the master's house, though it be upon the premises where the master's business is carried on, and though the servant have it because of his services. Greaves and Co. had a house and buildings where they carried on their trade; Mettran, one of their servants, lived with his family in the house, and paid 117. per ann. for rent and coals, such rent being much below the value; and Mettran was allowed to live there because he was servant; Greaves and Co. paying the rates and taxes. One of the buildings having been broken into, the indictment charged a burglary to have been committed in the dwelling-house of Greaves and Co., and it was urged that Mettran's occupation was their occupation, that the house he occupied might be deemed their dwelling-house, and that all their (i) Burgess's case, Kel. 27. (k) Peyton's case, O. B. 1784, 1 Leach 324. In 1 Bac. Abr. Burg. (E.), in the notes, there is a Qu. in whose house stealing in the Invalid Office at Chelsea should be laid to be. (1) Picket's case, O. B. 1765, 2 East. P. C. c. 15. s. 14. p. 501. C J., Tracy, J., and Bury, B., O. B. 1704, Fost. 38, 39. The case is cited from Mr. J. Tracy's MS. from which it appears that the jury was discharged of the indictment laying the breaking to be in the mansion-house of Samuel Story; and that it was amended by laying the breaking in the mansionhouse of the company. Mr. J. Foster says that this report is warranted in the substantial parts of it by the re2. Hawkins, cor. Holt, cord, Fost. 39. (m) Maynard's case, Cambridge Spr. Ass. 1774. 2 East. P. C. c. 15. s. 14. p. 501. (n) Rex buildings might be deemed part of their dwelling-house. But upon a case reserved, the judges thought that as Mettran stood in the character of tenant, and Greaves and Co. might have distrained upon him for the rent, and could not arbitrarily have removed him, Mettran's occupation could not be deemed their occupation, and that the conviction as to the burglary was wrong. (o) And though a servant live rent free for the purpose of his services in a house provided for that purpose, yet if he has the exclusive possession, and it is not parcel of any premises occupied by his master, the house may be described as the house of the servant: especially if it does not belong to his master, but to some person paramount his master; as in the case of the house of a toll collector. The tolls at a gate between Leeds and Wakefield were let to Ward, who employed Ellis to collect them, and Ellis lived for that purpose in a house belonging to the trustees, and built by them for purpose: he had a weekly sum from Ward, and the family of Ellis lived with him in the house. A burglary having been committed in the house, it was described in the indictment as the house of Ellis: and upon a case reserved all the judges were unanimous that it was rightly described; for Ellis had exclusive possession, it was unconnected with any premises of Ward's, and Ward did not appear to have any interest in it. (p) pany. And the rule has been holden not to extend to the case of a Ownership in house occupied by the agent of a trading company; though he the agent of a resided in it, with his family, only for the purpose of conducting trading comtheir trade, and the lease of the house was held and the rent and taxes for it paid by the company; and an indictment was holden to be good, which stated the burglary as being committed in the dwelling-house of such agent. In this case the agent, a Mr. Sylvester, kept a blanket warehouse in Goswell-street; and resided, together with his wife and children, in the house over the warehouse. The warehouse was on the ground floor, and consisted of four rooms, the second of which was the room that was broken into; and there was an internal door from the warehouse to the dwelling-house. All the blankets were the property of Mr. William Sellman and others, a company of blanket manufacturers, consisting of sixty or more, at Witney, in Oxfordshire, none of whom ever slept in the house. The lease of the premises was in the company, and the whole rent of both dwelling-house and warehouse was paid by them. Sylvester acted as their servant or agent, and received a consideration for his services from them, part of which consideration, he said, was his being permitted to live in the house rent free; and the lease of the premises was in the company. The commission of the offence being clearly proved, it was contended, by the counsel for the prisoners, on the authority of Hawkins's case, that this must be considered as the dwelling-house of the company, and ought to have been so charged in the indictment, and not as the house of Sylvester, who inhabited it merely for them, and as their servant. But the court is said to have been (0) Rex v. Jarvis, East. T. 1824, MS. Bayley,J., and Ry. & Mood. C.C.7. (p) Rex v. Camfield and another, Mich. T. 1824, MS. Bayley, J., and Case of Mar getts and others. Ownership where a ser vant has part and the rest is of a house, reserved. Ownership of apartments occupied by clearly of opinion that it was rightly charged to be the dwellinghouse of Sylvester; and that although the lease of the house was held, and the whole rent paid by the company in the country, yet as they had never used it in any way as their habitation, it would be doing an equal violence to language and to common sense, to consider it as their dwelling-house, especially as it was evident, that their only purpose in holding it was to furnish a dwelling to their agent, and ware-rooms for the commodities therein deposited. That the dwelling so furnished was a mean by which they in part remunerated Sylvester for his agency, and precisely the same thing as if they had paid him as much more as the rent would amount to, and he had paid the rent; but that the company in this case preferred paying the rent of the whole premises, and giving their agent and his family a dwelling therein, towards the salary which he was to receive from them. And that the house was therefore essentially and truly the dwelling-house of the person by whom it was occupied. (q) But where a servant has part of a house for his own occupation, and the rest is reserved by the proprietor for other purposes, the part reserved cannot be deemed part of the servant's dwellinghouse: and it is the same if any other person has part of the house, and the rest is reserved. The governor of the Birmingham workhouse was appointed under contract for seven years, and was to have the chief part of a house for his own and his family's occupation, but the guardians and overseers who appointed him, reserved to themselves the use of one room for an office, and three others for store-rooms. The governor was assessed for the house, excepting these rooms. The office was broken open, and the indictment stated it to be the governor's dwelling-house: but after conviction, and a case reserved, the judges held the description wrong. (r) Where persons are abiding in a house as guests, or by sufferance, or otherwise, having no fixed or certain interest in any part (a) Rex v. Margetts and others, O. B. 1801, cor. Graham, B. and Grose, J., 2 Leach 930. It is also stated, in the report of this case, that the court further gave as a reason for their judgment, that "the punish"ment of burglary was intended to "protect the actual occupant from the "terror of disturbance during the "hours of darkness and repose, but "that it would be absurd to suppose "that the terror, which is of the es“sence of this crime, could, from the breaking and entering in this case, "have produced an effect at Witney, "in Oxfordshire." But the accuracy of this reasoning may perhaps be questionable. The punishment of burglary will attach equally, and the actual occupant will not be less protected, though the offence should be laid in the indictment as committed in the dwelling-house of the real owner. And with respect to the terror in this case not having affected the company at Whitney, the same might have been said of the terror to the East India Company, or the African Company, in the cases of burglaries in their houses, which have been before-mentioned, ante 24. There is a note to this case of Margetts and others, which states that Grose, J. asked whether there had not been a prosecution at the Old Bailey for a burglary in some of the halls of the city of London, in which it was clear that no part of the corporation resided, but in which the clerks of the company generally lived; and that Mr. Knapp informed the court, that his father was clerk to the Haberdashers' Company, and resided in the hall which was broken open; and in that case the court held it to be his father's house. (r) Rex v. Wilson, E. T. 1806. MS. Bayley J., and Russ. & Ry. 115. a house or of it, and a burglary is committed in any of their apartments, the guests, &c. in indictment should lay the offence as in the mansion of the pro- no prietor of the house. (s) So that if the chamber of a guest at an inn be broken open, it must be laid in the indictment to be the mansion-house of the innkeeper. (t) It is indeed said, that if A., a lodger in an inn, goes to his chamber to bed, and his door is latched or locked, and afterwards in the night he rises, opens his chamber-door, steals goods in the house, and goes away, it may be a question whether this be a burglary; and it is also said, that it seems it would not, because A. had a kind of special interest and property in his chamber, and therefore that the opening of his own door was no breaking of the innkeeper's house. (u) But though this is the inclination of the opinion of a very great lawyer, the foundation on which it proceeds cannot easily be reconciled with the doctrine which he admits in the same page, and also in a subsequent part of his work, namely, that if A. had opened the chamber of B., another lodger in the inn, to steal his goods, it would have been burglary; and that though a lodger has a special interest in his chamber, yet a burglary committed in it must be laid as in the mansion-house of the innkeeper. (x) And it has been remarked, that this doctrine is also at variance with the reasoning, in a case subsequently decided, which supposes that a guest has not even the possession of a room in an inn for himself, but that it remains still in the possession of the host. (y) prisoner, un der pretence In this last-mentioned case, the prosecutor, who was a Jew Prosser's case. pedlar, came to a public-house to stay all night, and fastened the Where the door of his bed-chamber; when the prisoner, pretending to the landlord, that the prosecutor had stolen his goods, under this pretence, with the assistance of the landlord and others, forced open the chamber door with intent to steal the goods mentioned in the indictment; and the prisoner accordingly stole them. These facts were found specially. Mr. Baron Adams, who tried the prisoner, doubting whether the bed-chamber could properly be called the stolen his dwelling-house of the prosecutor, as stated in the indictment, the goods; held, case was submitted to the consideration of the judges. They all that the bur glary should thought, that though the prosecutor had for that night a special have been laid interest in the bed-chamber, yet that it was merely for a particular in the dwelling-house of purpose, namely, to sleep there that night as a travelling guest, the innkeeper, and not as a regular lodger; that he had no certain and perma- and not of the nent interest in the room itself, but that both the property and guest. the possession of the room remained in the landlord, who would be answerable civiliter for any goods of his guest that were stolen in that room, even for the goods then in question, which he could not be, unless the room were deemed to be in his possession. They thought also, that the landlord might have gone into the room when he pleased, and would not have been a trespasser to the guest and that, upon the whole, the indictment was insufficient. (2) (s) 1 Hawk. P. C. c. 38. s. 26. (1) 1 Hale 557. (u) Ibid. 554. (z) 1 Hale 554, 557. (y) 2 East. P. C. c. 15. s. 15. p. 503. where the learned writer says, that (z) Prosser's case, cor. Adams B. Ownership where there is a tenant at will. The ownership of apartments let out to in mates depends upon whether the owner sleeps under the same roof, and whether there is but one outer door. The landlord in this case does not appear to have been privy to the felonious intent of the prisoner; but, on the contrary, was imposed upon by him, and induced to assist in breaking open the chamber, upon the supposition that the guest within it had been guilty of felony: but even if the landlord had been an accomplice in the act of the prisoner, it seems that his offence would not have been burglary; for though it has been said that if the host of an inn break the chamber of his guest in the night to rob him it is burglary, (a) that doctrine is questioned; and it is well observed, that there seems to be no distinction between that case and the case of an owner residing in the same house, breaking the chamber of an inmate having the same outer door as himself, which would not be burglary. (b) If the owner of a house suffer a person to live in it rent free, it may be stated to be that person's house: he is tenant at will. The lessee of a house suffered his son-in-law to live in it, who failed and left it; but one of the son-in-law's servants continued in it. The lessee died, and the house was given up to the landlord, whose steward suffered the servant to continue in the house, and the only goods in it belonged to the servant. Upon an indictment for breaking the house in the day-time, the house was laid to be the servant's, and upon the point being saved, the judges thought that it was rightly laid, as the servant was there not as servant, but as tenant at will. (c) And it has been decided, that if the owner of a cottage lets one of his workmen, with his family, live in the cottage, free of rent and taxes, and he lives there principally, if not wholly for his own benefit, it may be described as the workman's cottage. One Gent, a workman in a colliery, had 15 shillings a-week, and a cottage for himself and family, free of rent and taxes he occupied chiefly for his own benefit, and not for his master's. An indictment for burglary described this as the dwelling-house of Gent, and Holroyd J. thought that it might be considered, as to third persons, either as the master's house or the workman's and the point being saved, the judges held that it might be described as the workman's, and that the conviction was right. (d) Though different opinions appear to have been formerly entertained upon the point, whether in the case of burglary in the hired apartment of an inmate it should be laid to be committed in the mansion-house of the inmate or of the owner; (e) it is now settled, that if the owner who lets out apartments in his house to other persons sleeps under the same roof, and has but one outer door at which he and his lodgers enter, all the apartments of such lodgers are parcel of the one dwelling-house of the owner; but, that if the owner does not himself dwell in the same house, or if he and his lodgers enter by different outer doors, the apartments so Monmouth Sum. Ass. 1768. 2 East. (b) 2 East. P. C. c. 15. s. 15. p. 502. Kel. 84. (c) Rex v. Collett, H. T. 1823. MS. Bayley J., and Russ. & Ry. 498. (d) Rex v. Jobling, M. T. 1823. MS. Bayley J., and Russ. & Ry. 525. (e) 1 Hale 556. Kel. 83, 81. 1 Hawk. P. C. c. 38. s. 27. 1 Bac Ab. Burglary, (E) notes. |