dwelling house, not having got below the chimney-piece; but the ten other judges held otherwise on the ground that the chimney was part of the dwelling-house, that the getting in at the top was a breaking of the dwelling-house, and that the lowering himself by the party was an entry within the dwellinghouse. (1)

A case is reported, in which the breaking was holden to be sufficient, though there was no interior fastening to the doors which were opened. It appeared that the place which the prisoner entered was a mill, under the same roof, and within the same curtilage, as the dwelling house: that through the mill there was an open entrance, or gateway, capable of admitting waggons, and intended for the purpose of loading them more easily with flour, by means of a large aperture or hatch, over the gateway, communicating with the floor above; and that this aperture was closed by folding doors with hinges, which fell over it, and remained closed by their own weight, but without any interior fastening; so that persons on the outside, under the gateway, could push them open at pleasure, by a moderate exertion of strength. It was proved that the prisoner entered the mill in the night, by so pushing open the folding doors, with the intention of stealing flour; and this was holden to be a sufficient breaking by the learned judge, who tried the prisoner; and the prisoner was accordingly convicted of burglary. (m)

But doubts were entertained whether lifting up the trap door or flap of a cellar, which was kept down solely by its own weight, was a sufficient breaking; such trap door or flap being used for the purpose only of taking in liquors to the cellar, and not as a common entrance for persons. The prisoner was indicted for stealing some bottles of wine in a dwelling-house, and afterwards burglariously breaking out of the house. It appeared in evidence, that the wine was taken from a bin in the cellar of the house, which was a public-house, and removed by the prisoner from the bin to the trap-door, or flap, of the cellar, in getting out of which he was apprehended. The cellar was closed on the outside, next the street, only by the flap, which had bolts belonging to it, for the purpose of bolting it on the inside, and was of considerable size, being made to cover the opening through which the liquors consumed in the public-house were usually let down into the cellar. The flap was not bolted on the night in question: but it was proved to have been down; in which situation it would remain, unless raised by considerable force. When the prisoner was first discovered, his head and shoulders were out of the flap; and upon an attempt being made to lay hold of him, he made a spring, got quite out, and ran away, when the flap fell down, and closed in its usual way, by its own weight. Upon this evidence it was doubted whether there was a sufficient breaking to constitute the crime of burglary; and, the prisoner having been convicted, the question was saved by the learned judge who pre

(1) Rex v. Brice, East. T. 1821. Russ. & Ry. 450.

(m) Brown's case, Winton, Spr. Ass.

1799, cor. Buller, J., 2 East. P. C. c. 15, s. 3. p. 487.

sided at the trial, for the opinion of the twelve judges, who were divided in opinion as to this being a sufficient breaking. (n)

about a house

The book 22 Assiz. 95., in which burglary is defined as the Breaking a breaking of houses, churches, toalls, courts, or gates in time of wall, built peace, is referred to by Lord Hale, as seeming to lead to the con- for its safeclusion, that where a man has a wall about his house for its safe- guard. guard, if a thief should in the night-time break such wall, or the gate thereof, and finding the doors of the house open, should enter the house, it would be burglary; though it would be otherwise if the thief should get over the wall of the court, and so enter through the open doors of the house. (o) But upon this it has been remarked, that the doctrine referred to by Lord Hale was anciently understood only as relating to the walls or gates of a city; and did not, therefore, support his conclusion, when he ap plied it to the wall of a private house. (p) And the distinction between breaking and coming over the gate or wall is spoken of by an_able writer as being over-refined : for if, as he observes, the gate or wall be part of the mansion for the purpose of burglary, and be inclosed as much as the nature of the thing will admit of, it scems to be immaterial whether it be broken or overleaped, and more properly to fall under the same consideration as the case of a chimney; and that if it be not part of the mansion-house for this purpose, then whether it be broken or not is equally immaterial, as in neither case will it amount to burglary. (g)

7 & 8 G. 4. c.

A door, wall, or other fence forming part of the outward fence of Breaking the the curtilage and opening into no building, but into the yard only, outer fence of was held not to be such a part of the dwelling-house as that the the curtilage. And as to breaking thereof would constitute burglary; and it was held to buildings make no difference that the door broken was the entrance to a within the covered gateway, and that some of the buildings belonging to the curtilage, see dwelling-house and within the curtilage, were over the gateway, 29. s. 13. post. and that there was a hole in the ceiling of the gateway for taking p. 14. up goods into the building above. The prosecutor had a dwellinghouse, warehouses, and other buildings, and a yard; the entrance into the yard was through a pair of gates which opened into a covered way; over this way were some of the warehouses, and there was a loop-hole and crane over the gates to admit of goods being craned up; and there was also a trap-door in the roof of the covered way; there was free communication from the warehouses to the dwelling-house: the prisoners broke open the gates in the night with intent to steal, and entered the yard, but did not enter any of the buildings; and, upon a case reserved, the judges were unanimous, that the outward fence of the curtilage, not opening into any of the buildings, was no part of the dwelling-house, and the prisoners were discharged. (r) So an area gate opening into

(n) Callan's case, cor. Lord Ellenborough, C. J, O. B. November, 1809. Mich. T. 1809. MS. Bayley J., and Russ. & Ry. 157. This case approaches very closely to Browne's

case, ante 4.

(0) 1 Hale 559.

(p) Note (n) 1 Hale 559, ed. 1800.
(q) 2 East P. C. c. 15. s. 3. p. 488.
(r) Rex v. Bennett and another,
Hil. 1815. MS. Bayley J., and Russ.
& Ry. 289.

Breaking an area-gate.

The breaking may be of an

the house.

the area only, is not such part of the dwelling-house, that the breaking of the gate will be burglary, if there be any door or fastening to prevent persons in the area from entering the house, although such door or other fastening may not be secured at the time. The prisoners opened an area-gate in a street in London, and entered the house through a door in the area, which happened to be open, but which was always fastened when the family went to bed, and was one of the ordinary barriers against thieves. Having stolen in the house to the value only of 39s., a question was made whether the breaking the area gate was breaking the dwelling-house, so as to constitute burglary; and as there was no free passage in time of sleep from the area into the house, the judges held unanimously that the breaking was not a breaking of the dwelling-house. (s)

It should be observed that the breaking requisite to constitute inner door of a burglary is not confined to the external parts of the house, but may be of an inner door, after the offender has entered by means of a part of the house which he has found open. Thus, if A. enter the house of B. in the night time, the outward door being open, or by an open window, and, when within the house, turn the key of a chamber door, or unlatch it, with intent to steal, this will be burglary. (t) So where the prisoners went into the house of the cook at Serjeant's Inn, in Fleet-street, to eat, and taking their opportunity, slipped up stairs, picked open the lock of a chamber door, broke open a chest, and stole plate, it was agreed that the picking open the lock of the chamber door, ousted them of their clergy, though the breaking open the chest would not have done so. (u) And it will also amount to burglary if a servant in the night time open the chamber door of his master or mistress, whether latched or otherwise fastened, and enter for the purpose of committing murder or rape, or with any other felonious design; or if any other person, lodging in the same house, or in a public inn, open and enter another's door, with such evil intent. (v) But it has been questioned whether, if a lodger in an inn should, in the night time, open his chamber door, steal goods, and go away, the offence would be burglary; on the ground of his having a kind of special property and interest in his chamber, and the opening of his own door being therefore no breaking of the innkeeper's house. (x)

Qu. As to the
breaking of
cupboards,
&c. fixed to
the freehold.

It is clear that the breaking open of a chest, or box, by a thief who has entered by means of an open door or window, is not a kind of breaking which will constitute burglary, because such

(s) Rex v. Davis and another, Hil. 1817, MS. Bayley J., Russ. & Ry.

322.

(t) 1 Hale 553. 1 Hawk. P. C. c. 38. s. 6. Johnson's case, Mich. T. 1786, 2 East. P. C. c. 15. s. 4. p. 488. (u) Anon. 1 Hale 524.

(v) 1 Hale 553, 554. 4 Blac. Com. 227. Binglose's case, 2 W. & M. MS. Denton, cited 2 East. P. C. c. 15. s. 4.

p. 488.
82, 84,

Gray's case, 1 Str. 481. Sum. 1 Bac. Ab. Burglary (A.) (x) 1 Hale 554. But upon this it is observed, that if another person should open such lodger's door burglariously, it must be laid to be the mansion of the innkeeper, and that a guest may commit larceny of the things delivered to his charge. 2 East. P. C. c. 15. s. 4. p. 488.

articles are no part of the house. (y) But the question with respect to the breaking of cupboards, and other things of a like kind, when affixed to the freehold, has been considered as more doubtful. Thus, at a meeting of the judges, upon a special verdict, to consider the point, whether breaking open the door of a cupboard let into the wall of the house were burglary or not, it appears that they were divided upon the question. (2) But Lord Hale says, that such breaking is not burglary at common law. (a) And Mr. J. Foster thinks that, with regard to cupboards, presses, lockers, and other fixtures of the like kind, a distinction should be taken, in favour of life, between cases relative to mere property, and such wherein life is concerned. He says, "In questions be"tween the heir or devisee, and the executor, those fixtures may, "with propriety enough, be considered as annexed to, and parts "of the freehold. The law will presume, that it was the intention "of the owner, under whose bounty the executor claims, that they "should be so considered; to the end that the house might remain "to those who, by operation of law, or by his bequest, should "become entitled to it, in the same plight he put it, or should "leave it, entire and undefaced. But in capital cases, I am of "opinion that such fixtures which merely supply the place of "chests, and other ordinary utensils of household, should be con"sidered in no other light than as mere moveables, partaking "of the nature of those utensils, and adapted to the same "use." (b)

house.

Though it was said to be the law, that the entering into the Of a breaking house of a person, without breaking it, with an intent to commit out of the some felony, and afterwards breaking the house in the night-time to get out, was burglary; yet, the doctrine was questioned by great anthority: (c) and it was thought expedient to remove the doubt by legislative enactment. This was first done by the statute 12 Anne, stat. 1. c. 7. s. 3. now repealed by the 7 and 8 G. 4. c. 27.; and the statute 7 and 8 G. 4. c. 29. s. 11. contains the following enactment upon the subject, namely, "It is hereby de"clared that if any person shall enter the dwelling-house of ano"ther with intent to commit felony, or being in such dwelling"house, shall commit any felony, and shall in either case, break "out of the said dwelling-house, in the night-time, such person "shall be deemed guilty of burglary."

Having mentioned these points relating to an actual breaking,

(y) 1 Hale 523, 524, 555. 1 East. where he says, "If a man enter in the P. C. c. 15. s. 5. p. 488, 489.

(z) Fost. 108. citing MS. Denton. The meeting of the judges was in January 1690.

(a) 1 Hale 527.

(b) Fost. 109. And see 2 East. P. C. c. 15. s. 5. p. 489.

(c) By Lord Holt and Trevor C. J. in Clarke's case, O. B. 1707. 2 East. P. C. c. 15. s. 6. p. 490. And the question is also stated in 1 Hale 554.

66

night time by the doors open, with "the intent to steal, and is pursued, "whereby he opens another door to "make his escape; this, I think, is "not burglary, against the opinion "of Dalt. p. 253. (new edit. p. 487.) "out of Sir Francis Bacon; for fregit el exivit, non fregit et intravit." Lord Bacon thought it was burglary. Elem. 65.

66

Of a breaking we may now enquire concerning a breaking by construction of by construclaw, where an entrance is obtained by threats, fraud, or conspiracy.

tion of law.

By threats.

:

Where in consequence of violence commenced or threatened, in order to obtain entrance to a house, the owner, either from apprehension of the violence, or in order to repel it, opens the door, and the thief enters, such entry will amount to a breaking in law (d) for which some have given as a reason that the opening of the door by the owner, being occasioned by the felonious attempt of the thief, is as much imputable to him as if it had been actually done by his own hands. (e) And in a later case where the evidence was, that the family within the house were forced by threats and intimidation, to let in the offenders, Thomson, B. told the jury that although the door was, literally, opened by one of the family, yet if such opening proceeded from the intimidations of those who were without, and from the force that had been used, knocking at and breaking the windows, calling out and insisting upon the door being opened, and firing of guns, if under these circumstances the persons within were induced to open the door, it was as much a breaking by those who made use of such intimidations to prevail upon them so to open it, as if they had actually burst the door open. (f) But if, upon a bare assault upon a house, the owner fling out his money to the thieves, it will not be burglary; (g) though if the money were taken up in the owner's presence, it is admitted that it would be robbery. (h) And though the assault were so considerable as to break a hole in the house; yet if there were no entry by the thief, but only a carrying away of the money thrown out to him by the owner, the offence could not, it should seem, be burglary, though certainly robbery. (i)

Where an act is done in fraudem legis, the law gives no benefit thereof to the party. Thus if thieves, having an intent to rob, raise hue and cry, and bring the constable, to whom the owner opens the door, and they, when they come in, bind the constable, and rob the owner, it is burglary. (I) And, upon the same principle, the getting possession of a dwelling house by a judgment against the casual ejector, obtained by false affidavits without any

(d) Crompt. 32. (a) 1 Hale 553. 2 East. P. C. c. 15. s. 2. p. 486.

(e) 1 Hawk. P. C. c. 38. s. 7.

(f) Rex v. Swallow and others, cor.
Thomson, B. York, Jan. 1813, MS.
Bayley, J. The prisoners were con-
victed, and executed.

(g) 1 Hawk. P. C. c. 38. s. 3.
(h) Sum. 81. 2 East. P. C. c. 15.
s. 2. p. 486.

(i) 1 Hale 555. but he says, that
some have held it burglary, though
the thief never entered the house; and
that it is reported to have been so
adjudged by Saunders, chief baron.
Crompt. 31 b. Lord Hale subjoins to
this doctrine tamen quære; and cer-

tainly, as a part of the statement of the case is, that there was no entry into the house, and as an entry is, as will be presently shewn, as essential a part of the offence as the breaking, it seems difficult to discover the ground on which it could have been ruled to be burglary. The editor of Lord Hale (ed. 1800) states in a note, that it was adjudged by Montague, chief justice of the C. B. and that Saunders only related it.

(k) 3 Inst. 64. 1 Hale 552, 553. Sum. 81. Crompt. 32 b. Kel. 44, 82. 1 Hawk. P. C. c. 38. s. 10. 4 Black. Com. 226.