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house, provided they were parcel thereof. (8) And any outhouse, within the curtilage, or same common fence, as the mansion itself, was considered to be parcel of the mansion, upon the ground that the capital house protected and privileged all its branches and

appurtenants, if within the curtilage, or homestall. (t) But the 7 & 8 G. 4. c. late statute 7 & 8 Geo. 4. c. 29. s. 13. has made an important al29. 8. 13. teration in this respect. It enacts “ that no building, although

“ within the same curtilage with the dwelling-house, and occupied

therewith, shall be deemed to be part of such dwelling-house for " the purpose of burglary, unless there shall be a communication “ between such building and dwelling-house, either immediate, or “ by means of a covered and enclosed passage leading from the “ one to the other.” But the breaking and entering any building within the curtilage of a dwelling-house, and stealing therein, is subjected to a higher punishment than simple felony by another section of the same statute which will be more particularly men

tioned in a subsequent chapter. (u) A part of a In some cases, a part of a mansion-house may be so severed

be from the rest, by being let to a tenant, as to be no longer a place so severed from the rest in which burglary can be committed. Thus, though a shop may as no longer be, and usually is, a parcel of the dwelling-house to which it is to be a place in which bur

attached; yet if the owner of the dwelling-house let the shop to a glary can be tenant who occupies it by means of a different entrance from that committed.

belonging to the dwelling-house, and carries on his business in it, but never sleeps there, it is not a place in which burglary can be committed, if there be no internal communication with the other part of the house; for it is not parcel of the dwelling-house of the owner, who occupies the other part, being so severed by lease ; nor is it the dwelling-house of the lessee, when neither he nor any of his family ever sleep there. (x) But if there be an internal communication, burglary it seems may be committed. Thus, where a man let part of his house, including a shop, to his son, and there was a distinct entrance into the part so let, but a passage from the son's part led to the father's cellars, and they were open to the father's part of the house, and the son never slept in the part so let to him, it was held upon a case reserved after a conviction for burglary in the shop, laid to be the dwelling-house of the father, that the conviction was right, upon the ground that the part of the house let to the son continued to be part of the dwelling-house of the father, by reason of the internal communication. (y) If the lessee, or his servant, should usually, or often lodge at night in a shop or other premises severed from the house, it would then be the mansion or dwelling-house of such lessee, in which burglary might be committed. (3)

A case was put upon the old law of burglary, whether if the

but neveted, if uses for the other the lessBut if &

(s) 3 Inst. 64. i Hale 558. Sum. 4 Black Com. 225, 226. 2 East P. C. 82. I Hawk. P. C. c. 38. s. 21. 4 c. 15. S. 20. p. 507. Black. Com. 225.

(y) Rex v. Sefton, Mich. T. 1811. (1) I Hale 558, 9. i Hawk. P. C. MS. Bayley J., and Russ. & Ry. 202. c. 38. s. 25. 4 Black. Com. 225. 2 where it is said that the judges thought East. P. C. c. 15. s. 10. p. 493.

this a case of much nicety. (u) Post, Chap. 5.

(z) i Hale 558. (x) i Hale 557, 558. Kel. 83, 84.

owner and occupier of a dwelling-house should let a part of it, namely, a chamber and a cellar, to a tenant, the only passage to the cellar being out of the street, and the cellar should be broken open in the night, it would be burglary: and it was supposed that it would not, on the ground that the cellar must be considered as severed by the lease, and had no communication with the rest of the house. (a) Upon this, however, it was observed, that the cellar would be no more severed from the house by the lease than the chamber, in which a burglary might be committed, and laid to be in the mansion of the owner and occupier of the dwellinghouse, there being but one common entrance to him and the lodger. But it was admitted, that if the cellar alone were let, clearly no burglary could be committed in it. (b) And it should seem that no burglary could now be committed in such cellar, whether it were let alone or together with the chamber, as the late act requires that there should be a communication between any building broken into and the dwelling-house, in order to constitute burglary.

A building separated from the dwelling-house by a public road, Part of prewas holden not to be parcel of the dwelling-house, though the mises consiroad was very narrow, and the dwelling-house and building were

tinct dwellingheld by the same tenure, and some of the offices necessary to the house. dwelling-house adjoined to such building, and though there was an awning which extended to it from the dwelling-house; but they were not connected by any common fence or roof. But it was also holden that if such building were made a sleeping place for any of the servants of the dwelling-house, it might be deemed a distinct dwelling-house. J. B. lived in Epsom, and his kitchen, larder, brewhouse, and wash-house, were across a public passage nine feet wide; he had an awning over this passage to protect what was brought across; one of his servants, a boy, slept over the brewhouse, and that was the sleeping place allotted him by J. B. The boy's room was broken into, and Park J. doubting whether that could be deemed parcel of J. B.'s dwelling-house saved the point. Upon consultation, the great majority of the judges thought that it was not parcel of the dwelling-house in which J. B. dwelt, because it did not adjoin to it, was not under the same common roof, and had no common fence. Graham B. thought it was parcel of that house ; but all the judges except Park J. (Richardson J. being absent) thought that it was a distinct dwelling-house of J. B.'s, and that as the indictment described it as his dwelling-house, the conviction was right. (c)

It should seem that if an out-house have a communication with It seems that a dwelling-house such as is described by the 7. & 8. Geo. 4. c. 29. an out-house

will not be s. 13. it will not be prevented from being parcel of the dwelling- prevented house by being holden under a distinct title. It was said indeed, from being that if a man should take a lease of a dwelling-house from A. and parc

dwellingof a barn from B., such barn would be no parcel of the dwelling- house by house, and not therefore a place in which burglary could be com- being holden

under a dis

tinct title. (a) Kel. 83, 84.

Wiggs, 1 Leach 357. 2 East. 508. (6) 2 East P. C. c. 15. s. 20. p. 507. (c) Rex v. Westwood, Mich. T. And see Rex v. Gibson, Mutton, and 1892. Russ. & Ry. 495.

hiling-house of 9. hs being absents in but all the judgraham B.

mitted ; (d) a position which would seem to lead to the inference, that no outhouse, holden under a distinct title from the dwellinghouse, could be the subject of burglary. But upon this, it was observed, that the circumstance of an out-building being enjoyed by the occupier under a different title from his dwelling-house, seemed a very unsatisfactory reason of itself for excluding it from the same protection, if it were within the curtilage, or under the same roof, and actually enjoyed as parcel of the dwelling-house in point of fact, and under such circumstances as would, apart from the difference of title, constitute it parcel of the mansion in point

of law. (e) Of the inhabi- The next question relating to the mansion-house is, how far tancy. it must be inhabited ? Cases where It appears to be well settled, that unless the owner has the owner has taken possession of the house by inhabiting it personally, or by not begun to some one of his family, it will not have become his dwellinginhabit.

house in the proper meaning of the word, as applied to the offence of burglary. There are several cases to this effect, which sufficiently overrule any different opinions which may have been for

merly entertained. (f) Case of Lyons

A Mr. Smith having purchased a house with an intention to and Miller.

reside in it, had moved into it some of his furniture and effects, to the value of about ten pounds; the house was put under the care of a carpenter for the purpose of being repaired; and Mr. Smith had not himself entered into the occupation of any part of it, nor did any part of his family, nor any person whatever, sleep therein. While the house was in this situation, it was broken open in the night-time; and, upon a case reserved for the consideration of the judges, they were of opinion that it could not be considered as a dwelling-house, being entirely uninhabited ; and that therefore there could be no burglary. (g)

So where the tenant of a house, when the former tenant had quitted, put all his furniture into it, and frequently went thither in the day-time, but neither himself, nor any of his family had ever slept there; it was ruled that burglary could not be committed therein. (1)

Hallard's case.

(d) i Hale 559.
(e) 2 East P. C. c. 15. s. 10. p. 494.

if) In I Hawk. P. C. 38. s. 18. it is
said that a house which one has hired
to live in and brought part of his
goods into, but has not yet lodged in,
is one in which burglary may be com-
mitted. The point is mentioned in
Kel. 46. but not as having been de-
cided, ideo quære legem being sub-
joined.

(g) Rex v. Lyons and Miller, 1 Leach 185. The case is rather differently reported in 2 East. P. C. c. 15. s. 11. p. 496. where it is stated that no goods were in the house at the time it was broken open, and that the judges were therefore also of opinion that it was no burglary, because, as the indictment charged an intent

to steal, it must mean to steal the goods then and there being, and that, nothing being in the house, nothing could be stolen : but it is also further stated, that it seemed to be the sense of the judges, and Eyre, B. declared it to be his opinion, that although some goods might have been put into the house, yet if neither the party nor any of his family bad inhabited it, it would not be a mansion-house in which burglary could be coinmitted.

(h) Hallard's case, cor. Buller, J., Exeter, Spr. Assiz. 1796. 2 East. P. C. c. 15. s. 12. p. 498. 2 Leach 701. note (a), and S. P. Thompson's case, cor. Grose, J. Kingston, Spr. Ass. 1796, 2 East. ibid. 2 Leach 771.

waer puts a

And though persons sleep in a house thus situated, yet, if they are not of the family of the owner, it will still not be a dwellinghouse in which burglary can be committed.

Thus, where the prisoner was indicted for a burglary in the Fuller's case. dwelling-house of a Mr. Holland, and it appeared in evidence that the house was newly built and finished in every respect except the painting, glazing, and the flooring of one garret; that a workman, who was constantly employed by Mr. Holland, slept in it for the purpose of protecting it, but that no part of Mr. Holland's domestic family had taken possession of it; the court held that it was not the dwelling-house of Mr. Holland. (e)

So in a case where it appeared that the prosecutor had lately Harris's case. taken the house which was broken open; that he himself had never slept there, nor any of his family; but that on the night in which it was so broken, and for six nights before, he had procured two hair-dressers, who were not in any situation of servitude to him, to sleep there for the purpose of taking care of his goods and merchandize, which were deposited therein ; the court was of opinion that the house could not, in contemplation of law, be considered as the dwelling-house of the prosecutor. (f)

Where the owner of the house has no intention of going to re- Where the side in it himself, and merely puts some person to sleep there at o

person to nights till he can get a tenant, the same rule is established; and sleep in the the house, under such circumstances, cannot be considered as the house at dwelling-house of the owner.

nights, till he

can get a teThis point arose upon an indictment for stealing goods to the nant. value of forty shillings in the dwelling-house. (8) Upon the Davies's case. evidence it appeared that Mr. Pearce was a brewer living in Millbank-street, and owner of a public-house in Palace-yard, in which the offence was committed. The house was, at the time of the offence, shut up, and in the day time entirely uninhabited : but a servant of Mr. Pearce's was put to sleep in it at night, for the protection of the goods, until some other publican should take possession of it. There were in the house a number of beds, chairs, and other articles of furniture, which Mr. Pearce had purchased of the former tenant, with a view to accommodate the person to whom he might let it, but with no intention of residing in the house himself, either personally, or by means of any of his servants. The prisoner was found guilty of the whole charge stated in the indictment: but the point being saved for the opinion of the Judges, they were of opinion that the conviction, as to the capital part of it, was wrong; that as Mr. Pearce never intended to inhabit the house, it could not, in contemplation of law, be considered as his dwelling-house; and that it would have been no burglary if the house had been broken in the night. (h)

(e) Fuller's case, 0. B. 1782, cor. P. C. c. 15. s. 12. p. 498. the Recorder, 2 East. P. C. c. 15. s. (g) Under the provisions of 12 12. p. 498. Leach 187.

Anne, c. 1. (f) Harris's case, 0. B. 1795, cor. (h) Davies's, alias Silk's case, 2 the Recorder, 2 Leach 701. 2 East. Leach 876. 2 East. P. C. c. 15. s. 12.

VOL. II.

ness

there.

its o

r, on

Using the. Where the owner of the house has never, by himself or by house for busi

Decr. bust any of his family slept in it, though he has used it for his not sleeping meals, and all the purposes of his business, it is not his dwell

ing-house, so as to make the breaking thereof burglary. One Clayson took a house in a street, and in it carried on his business of a shop-keeper, and dined, entertained his friends, and passed his days there, and had bedding up stairs; but he always slept at his mother's two doors off, and he had no servant sleeping in the house. An indictment for burglary described this as his dwelling-house, and the prisoner was convicted; but the Judges held that it could not be deemed his dwelling-house, and that the

conviction was wrong. (0) A house will

When the owner of the house has once entered upon the not cease to be the dwell- possession and occupation of it, by himself, or by some of his ing-house of family, it will not cease to be his dwelling-house on account of

any occasional or temporary absence; even though no person be account of his occasional or left in it. (k) Thus, if A. have a dwelling-house, and upon occatemporary ab- sion he and all his family be absent for a night or more, burglary sence.

may be committed in their absence; and, so if A. have two mansion-houses, and be sometimes with his family at one, and sometimes at the other, the breach of one of them in the night time, in the absence of his family, will be burglary. (1) Also, if A. have a chamber in a college, or inn of court, where he usually lodges in term time; and, in his absence in the vacation, the chamber be

broken open, the same rule will apply. (m) Case of Mur The following case was decided in conformity with these prinray and Har

ciples. The owner of a house in Westminster, in which he ris.

dwelt, took a journey into Cornwall, with intent to return; and sent his wife and family out of town, and left the key with a friend to look after the house; and, after he had been gone a month, no person being in the house, it was broken open in the night, and robbed. A month afterwards, the owner returned with his family, and again inhabited there. This breaking was holden

to be burglary. (n) But there . But in cases of this kind there must be an intention on the part inust be ani.

of the owner to return to his house, animus revertendi ; for if the in the owner. owner has quitted without any intention of returning, the breaking

of a house so left will not be burglary. (0) Nutbrown's The prisoners were indicted for a burglary in the dwelling

house of a Mr. Fakney, and stealing divers goods. It appeared by Mr. Fakney's evidence, that he made use of the house in question, which was situated at Hackney, as a country-house, in the summer time, his chief residence being in London : that, about

mus revertendi

case.

p. 499. The prisoner was in conse- 64. 1 Bac. Ab. Burglary, (E.)
quence recommended to mercy, on (1) I Hale 556. Sum. 82.
condition of transportation, which (m) Id ibid.
might have been his punishment if he in) Rex v. Murray and Harris, O. B.
had been found guilty of simple JOW. 3. 2 East. P. C. c. 15. s. 11. p.
larceny only.

496, cited also in Fost. 77. from MS. (i) Řex v. Martin, East. T. 1806. Denton and Chapple, as a case upon MS. Bayley, J.; and Russ. & Ry. a burglary in the house of Mr. 108.

Nicholls. : (1) Fost. 77. I Hale 556. 3 Inst. (o) Fost. 77; 4 Black. Com. 225.

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