But, where the prosecutor, an upholsterer, and his family, left the house in which he had resided with his family, without an intent of returning to live in it, and took a dwelling-house elsewhere, but still retained the former house as a warehouse and workshop; and two women, employed by him as work women in his business, and not as domestic servants, slept there to take care of the house, but did not have their meals there, or use the house for any other purpose than sleeping in it as a security to the house: the judges held that this was not properly described as a dwelling-house of the prosecutor. (a)

(a) R. v. Flanagan, R. & Ry. 187.

sors 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 & 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 & Co.; and, secondly, if these premises were the dwelling-house of Messrs. Moore & 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. After hearing the argument on behalf of the priso ners, Lord Ellenborough, C. J., said, "Could Stevenson have maintained trespass against his employers for entering these rooms? or, if a mau 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 Stevenson, and the door was never fastened; and it can make no difference whether the communications 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 park-gates; if a master turns away his servant, 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? Rex v. Stockton and Edwards, 2 Taunt. 339; 2 Leach, 1015.

In Delaware, Saxon a free negro was indicted for breaking and entering the store of J. Stevenson in the night time, and stealing the goods of J. H. S. It was ruled by the court, that as it was proved the shop belonged to, or was rented by Thomas Stevenson, who rented to J. H. S. an undivided part of the shop, there being but one common door of entrance, they were in the joint possession of the shop, and the indictment should have averred it to be their common shop. Saxton's case, 2 Harr. Rep. 533.

The same rule, of the occupation of the servant being that of the master, will hold with respect to all persons standing in the relation of servants, and not having the exclusive possession nor paying rent. 1 Hale, 522 556, 557; 2 East P. C., c. 15, s. 14, p. 500; Burgess' case, Kel. 27; 1 Leach, 324; Rex v. Jordan, 7 C. & P. 532.

The following case appears to have proceeded upon the 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 mansion-house 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. Fost. 38, 39.

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

So, a servant put. to sleep in a barn, for the temporary purpose of watching against thieves, (a) or a porter lying in a warehouse, for the temporary purpose of watching goods, (b) does not make the barn or warehouse a dwelling-house, which can be the subject of burglary. But where a coachman rented two rooms over his mistress's coach house, and he and his family dwelt in them, it was holden that they were well described as his dwelling-house in an indictment for burglary in them.(c) However, the occasional absence of the prosecutor and his family from his dwelling-house, will not prevent it from being such, (d) provided, that, when absent, he have the intention of returning to it.(e) But

(a) Brown's case, 2 East, P. C. 497. (b) R. v. Smith, 2 East, P. C. 497. (c) R. v. Turner, 2 East, P. C. 492.

(d) 1 Hawk. c. 38, s. 18; R. v. Murry and Harris, 2 East, P. C. 496.

(e) Nutbrown's case, Fost. 76.

his services. Greaves & 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 annum for rent and coals, such rent being much below the value; and Mettran was allowed to live there because he was servant; Greaves & 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 & 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 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 & Co. might have distrained upon him for 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. 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 to his master; as in the case of a 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 that 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. Rex v. Canfield, et al. Ry. & Mood. C. C. Rep. 42. And the rule has been holden not to extend to the case of a house occupied by the agent of a trading company; though he resided in it, with his family, only for the purpose of conducting their 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. Wm. 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

if he leave it, without an intention to return to it,-it can no longer be deemed his dwelling-house.(a). So, if the tenant of a dwelling-house, quit it at the end of his term, it can no longer be deemed his dwellinghouse, or the dwelling-house of his landlord, unless the latter go and dwell in it.(b) But where the occupier died, and his executor put servants into the house, paying them board wages, but did not go to reside there himself, and a burglary was committed in the house, the judges held that it might be deemed the dwelling-house of the [*335] executor.(c) If a man however take a house, and before *he goes to live in it,.and whilst it is under repair or preparing for

(a) Nutbrown's case, Fost. 76.

(c) R. v. Jones and Longman, 2 East, P. C.

(b) R. v. Davis alias Silk, 2 East, P. C. 499.

499.

consideration, he said, was his being permitted to live in the house rent free. The commission of the offence being clearly proved, it was contended, by the counsel for the prisoners, on the authority of Hawkin'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 clearly of opinion, that it was rightly charged to be the dwelling-house 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 dwellinghouse, 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 means 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. Rex v. Magetts, et als., 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 punishment 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 essence 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 Witney, 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. Russ. on Cr. vol. 1, p. 814, note.

See

Though a servant live rent free in the house belonging to his master, and his master pay the taxes, and the master's business be carried on in the house, yet if the servant and his family be the only persons who sleep in the house, and the part in which the master's business is carried on be at all times open to those parts in which the servant lives, it may be stated as the servant's house, though the only part entered by the thief were that in which the master's business was carried on. The prisoner was indicted for stealing the property of Bontillior, in the dwelling-house of Bunyon; it appeared that Bunyon was secretary of the Norwich Union and Life Office, at the time the felony was committed; no one of the

him, it be broken, entered, and robbed, it cannot be deemed his dwelling-house, for he has never as yet dwelt in it; and of course the offender cannot be convicted of burglary.(a) The law of burglary also has relation to permanent structures only, and not to booths or tents, or the like, although the owners may happen to dwell therein.(b) But where a permanent building of mud and brick, built on the down of Weyhill, with wooden doors and windows that bolted on the inside, was rented by the prosecutor for the week of the fair, and used as a booth, but he and his wife slept in it; this being broken into by the prisoner in the

(a) R. v. Lyons & Miller, 2 East, P. C. 497; Hallard's case, 2 East, P. C. 498; Fuller's

case, Id.; Harris's case, Id.

(b) 1 Hale, 537; 1 Hawk. c. 38, s. 35.

company ever dwelt in the house; Bunyon, his family, and servants were the only persons occupying the house, and he lived there as secretary to the company; the rent and taxes were paid by the company. The property stolen was deposited in a safe, in the lower part of the house, which was used as the office of business of the company, for safety till the next morning, when it would have been carried away by Bontillior, The business of the office closed at five o'clock, and the rooms of business were not locked, but left equally accessible to Bunyon or any part of his family or servants, with any other part of the house. It was objected that the house ought to have been laid as the house of the company: but the recorder, on the authority of the preceding case, overruled the objection, and upon a case reserved, the judges were of opinion that the house was properly described as Bunyon's house, as he and his family and servants were the only persons who dwelt there; they and they only were liable to be disturbed by a burglary; and though the judges would not say that it might not have been described as the company's house, they thought it might, with equal propriety, be described as Bunyon's, and that the conviction was right. Rex v. Witt, Ry. & Moo. C. C. R. 248.

Where a servant lived in a cottage, quite distinct from his master's house, and has the entire control over the cottage, it may de described as his dwelling-house, although he pay no rent for it, and may be liable to give it up whenever his service is terminated. Upon an indictment for a burglary in the dwelling-house of J. Lewis, it appeared that Lewis was a gardener to the Baron De Rutzen, and that he occupied, as a gardener, a cottage in his master's garden, that he slept in the cottage, and kept the key, but took his meals with the other servants in the house; he paid no rent, and consdiered himself liable to give up the cottage whenever he ceased to be gardener. It was objected that Lewis took no interest in the cottage: but merely occupied it in right of his master, and that it should therefore have been described as the dwelling-house of the master. Lord Denman, C. J., "As the building in which the servant slept is quite distinct and apart from the master's place of residence, and he had a perfect control over it, and kept the key, I think that it is well described as the dwelling-house of the servant; but I do not think that the indictment would have been bad, had it laid the house as that of the master." Rex v. Rees, 7 C. & P. 568

Upon an indictment for burglary, in one count alleged to have been committed in the dwelling-house of Bromage, and in another in the dwelling-house of the Earl of Coventry; it appeared that Bromage had the house and firing for the services he had performed for the Earl during fifty years, but he did no work, and was allowed so much a week as an old servant; Littledale, J., held that this was sufficient to support the indictment, as the house of Bromage, or at all events, as the house of the Earl of Coventry. Rex v. Ballard and Everall, Worcester Lent. Ass. 1830, MSS.

Where a policeman was allowed to live in a house, in order to take care of it, and a wharf adjoining, it was held that the house was properly described as the dwelling house of the policeman, on the ground that he must live somewhere; and he was not otherwise the ser

night time, whilst it was thus occupied, Parke, J., (after consulting Littledale, J.) held that it was such a dwelling-house as might be the subject of burglary, and the prisoner was convicted.(a)

(f) The out-house.

All out-houses within the curtilage, (that is, the common fence including the dwelling-house and its offices) were formerly deemed parts of the dwelling-house; and if a burglary were committed in any of them, it was stated to be committed in the dwelling-house, or in an out-house

(a) R. v. Smith, Mo. & R. 256.

vant of the owner in the particular matter. Rex v. Smith, cited in Rex v. Rawlins, 7 C. & P. 150.

But where upon an indictment for burglary in the dwelling house of Bird, it appeared that Bird worked for one Woodcock, who did business as a carpenter for the New River Company, and put him in to take care of the house and flock mills adjoining, which belonged to the company, and he received no more wages than he did before he lived there, nor had any agreement for any; it was doubted whether the house was properly laid, and that it was thought that there might be some difference between this and the perceding case, as here the man was put in by a person who did the work for the company, and it was thought the safest course to consider the indictment as not properly laying it to be the dwelling-house of Bird. Rex v. Rawlins, 7 C. & P. 150.

Upon an indictment for house-breaking, describing the house in one count as the dwelling-house of Mary Moulder, and in another count as the dwelling-house of G. B. P. Primm, no proof of the christian names of Primm was given; but it appeared that Moulder had been put into the house by Primm to take care of it, till it could be let, and she was to have coals for firing found by Primm; she paid no rent for the houses; she had been occasionally a servant of Primm for thirty or forty years, and done work for him, for which she had always been paid; and it was objected that the house was not the dwelling-house of Moulder but of Primm. Littledale, J., “I think the evidence is sufficient to support the first count. The prosecutrix has had the exclusive occupation of the house, and although there are very nice distinctions between the cases, I think this was her dwelling-house. She was not put in as a servant, to take care of the furniture or goods, which has generally been the case where such questions have arisen. Rex v. James, Gloucester Lent Ass. MSS. 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 dwelling-house; 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 had 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. Rex v. Wilson, Russ. & Ry. 115.

Where persons are abiding in a house as guests, or by sufferance, or otherwise, having no fixed or certain interest in any part of it, and a burglary is committed in any of their apartments, the indictment should lay the offence as in the mansion of the proprietor of the house. 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. 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